Johnston v. City of Chicago

• Decision Date: 05 June 1913
• Citation: 101 N.E. 960,258 Ill. 494
• Parties: JOHNSTON v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

258 Ill. 494

101 N.E. 960

JOHNSTON

v.CITY OF CHICAGO.

Supreme Court of Illinois.

April 19, 1913.

Rehearing Denied June 5, 1913.

Appeal from Appellate Court, First District, on Error to Municipal Court of Chicago; McKenzie Cleland, Judge.

Action by B. F. Johnston against the City of Chicago. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.William H. Sexton, Corp. Counsel, of Chicago (A. L. Gettys and William Dillon, both of Chicago, of counsel), for appellant.

Charles Hudson, of Chicago, for appellee.

CARTER, J.

The Chicago Public Library owned and used in the delivery of its books from the main library to the substations in said city an automobile, which through the negligence of its driver, hired by the secretary of said library, collided with and damaged appellee's automobile on the public streets of Chicago. On a trial in the lower court, a jury being waived, there was a finding in favor of appellee for $109.65 damages. On appeal to the Appellate Court that judgment was affirmed. A certificate of importance being granted, the case has been brought here. The negligence of the driver of the library's automobile is conceded.

[1] The sole question presented by the record is whether appellant, the city of Chicago, is liable for damages caused by such negligence. Section 1 of the Library Act of 1872 (Hurd's Stat. 1911, p. 1460) provides that the city council of each incorporated city, whether organized under the general law or a special charter, shall have power to establish and maintain a public library and reading room for the use and benefit of the inhabitants of such city and to levy a tax therefor. Some suggestion is made in the briefs that, if there is any liability, it is against the Chicago Public Library and not against the city of Chicago, although there is no assignment of error specifically raising that question. The only point argued is that there is no liability either against the city of Chicago or the Chicago Public Library. While the question as to whether the suit is properly brought against the city of Chicago or the library is not directly raised, we will say, in passing, that we think that, if there by any liability, it is against the city of Chicago. When it is sought to render a municipal corporation liable for the acts of servants or agents, the first inquiry is whether they are the servants or agents of the corporation. ‘If the corporation appoints or elects them, can control them in the discharge of their duties, continue or remove them, can hold them responsible for the manner in which they discharge their trust, and if those duties relate to the discharge of corporate powers,’ they may be justly regarded as its agents or servants. 4 Dillon on Mun. Corp. (5th Ed.) § 1655, and note. Under the statute authorizing the establishing and maintenance of a public library and reading room the directors of said library were appointed, and may be removed for cause, by the mayor, with the approval of the city council. Reading the entire statute together, we think its whole scope and intent is that the library board is but a part and parcel of the city government. As was said by this court in Board of Water Com'rs v. People, 137 Ill. 660, on page 667, 27 N. E. 698 on page 700: ‘Without the active co-operation of the city council, it would have been wholly unable to effect the objects of its creation.’ And it was there held that the board of water commissioners of the city of Springfield was merely a branch or agency of the municipal government.

Counsel for appellant insist that the city of Chicago, in establishing and carrying on a public library, is simply exercising a public or governmental function as distinguished from a strictly municipal function, and therefore it is not liable for the negligent acts of its employés. 1 Beach on Public Corp. § 261e. The authorities have found it practically impossible to state any rule sufficiently exact to be of much practical value, ‘which will precisely embrace torts for which a civil action will lie, in the absence of a statute declaring the liability against a municipal corporation.’ 4 Dillon on Mun. Corp. (5th Ed.) § 1625; 1 Beach on Public Corp. § 263. Indeed, it has been said more than once that all that can be done with safety is to determine each case as it arises. Lloyd v. New York, 5 N. Y. 369, 55 Am. Dec. 347; Cobb v. Dalton, 53 Ga. 426.

[2] It is frequently stated that, to determine whether there is municipal responsibility, the inquiry must be whether the particular agents or servants for whose acts of negligence it is sought to hold the corporation are its agents and servants for the performance of a public duty imposed by law, or merely for the carrying out of private functions which are for its special benefit or advantage. 28 Cyc. 1269, and cases cited; 20 Am. & Eng. Ency. of Law (2d Ed.) 1203; Williams on Mun. Liability for Torts, § 11.

In considering the question of liability, the authorities usually hold that it must be considered that a municipality acts in a dual capacity-first, in exercising its governmental functions; and, second, as a private corporation, enjoying powers and privileges conferred for its own benefit. When such municipal corporation is acting within its authority, in a ministerial character, in the management of its property, it is liable for the negligent acts of its employés, although the work in which they are engaged will inure to the benefit of the municipality. On the other hand, whether the municipality is exercising judicial, discretionary, or legislative authority conferred by its charter, or is discharging a duty imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers. 2 Cooley on Torts (3d Ed.) 1014; City of Chicago v. Seben, 165 Ill. 371, 46 N. E. 244,56 Am. St. Rep. 245; 20 Am. & Eng. Ency. of Law (2d Ed.) 1197; Tiedeman on Mun. Corp. §§ 338, 349. The mere fact that a particular work may incidentally benefit the public does not necessarily exempt the city for torts committed by its employés. 20 Am. & Eng. Ency. of Law (2d Ed.) 1196.

[3] Official action is judicial where it is the result of judgment or discretion. It is ministerial when it is absolute, certain, and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially, and is bound to see that the work is done in a reasonably safe and skillful manner. City of Chicago v. Seben, supra; 4 Dillon on Mun. Corp. (5th Ed.) § 1741.

[4] A purely charitable corporation is by the weight of authority held not liable for the torts or neglect of its servants in the performance of their duties in carrying on the work of such corporation.

[5] Neither is a city liable for the acts of its employés who are acting under the police power granted to such corporation. 2 Cooley on Torts (3d Ed.) 1011; Culver v. City of Streator, 130 Ill. 238, 22 N. E. 810,6 L. R. A. 270;Parks v. Northwestern University, 218 Ill. 381, 75 N. E. 991,2 L. R. A. (N. S.) 556,4 Ann. Cas. 103;City of Chicago v. Williams, 182 Ill. 135, 55 N. E. 123;Evans v. City of Kankakee, 231 Ill. 223, 83 N. E. 223,13 L. R. A. (N. S.) 1190. So, also, a municipal corporation is not responsible for the negligent acts of its employés who are endeavoring to carry out the regulations of said municipality for the public health and for the care of the sick and destitute. 4 Dillon on Mun. Corp. (5th Ed.) § 1661; Tollefson...