Nagle v. Wakey

• Decision Date: 12 May 1896
• Citation: 43 N.E. 1079,161 Ill. 387
• Parties: NAGLE v. WAKEY et al.
• Court: Illinois Supreme Court

161 Ill. 387

43 N.E. 1079

NAGLE

v.WAKEY et al.

Supreme Court of Illinois.

May 12, 1896.

Appeal from appellate court, Second district.

Action by George W. Nagle against Jeremiah Wakey and others. From a judgment of the appellate court reversing a judgment for plaintiff (59 Ill. App. 198), plaintiff appeals. Judgment of appellate court affirmed.

Phillips and Magruder, JJ., dissenting.

Brewer & Strawn, for appellant.

Mayo & Widmer and Snow & Hinebaugh, for appellees.

PER CURIAM.

After a careful examination of the record in this case, we perceive no ground for disturbing the judgment of the appellate court. It will therefore be affirmed. As the grounds upon which the judgment was reversed are fully stated in the opinion of the appellate court, in which we concur, that opinion will be adopted as the opinion of this court. It is as follows (Cartwright, J.):

‘Appellant brought this suit against appellees, and by the first count of his declaration alleged that they were, and for a long time had been, acting as commissioners of highways of the township of Grand Rapids, in La Salle county, and had the care, superintendence, possession, and control of a bridge in a highway of the township, and ought to have kept it in good and safe repair and condition, and had adequate material, money, and labor for that purpose, yet wrongfully and negligently suffered it to be in bad and unsafe repair and condition, with no railing or other protection to prevent a team and wagon from falling off, and of insufficient width; and that, while he was driving across said bridge with all due care, one of the horses was caused to jump against the other by the noise of the frosty plank snapping, and he and the team were thrown off the bridge at the side, and his leg was broken at the hip joint. The second count is the same as the first, except that it charged that appellees wrongfully, negligently, and unskillfully built, and permitted to be built and remain, the bridge in the condition stated; and that the horses suddenly took fright, and swerved to one side, whereby appellant and the team were thrown off the side of the bridge, and appellant's leg was borken at the hip joint. A trial was then had under a plea of the general issue, and resulted in a verdict for plaintiff for $100. Both parties entered motion for a new trial, which were overruled by the court, and judgment was entered on the verdict. Both parties have assigned errors upon the record. At the trial plaintiff proved that defendants were commissioners of highways of the town of Grand Rapids. The defendant Jeremiah Wakey had held that office for eight years, and the defendants Engledert Sauter and W. A. Dickerman had held the office since the spring of 1891. The bridge in question was located on a north and south road over a place where there was probably 4 or 5 inches in depth of water for a width of 4 feet. It was 14 feet wide and 18 feet long, and consisted of seven floor joists, resting on mud sills and covered with planking. The floor was from 3 1/2 to 4 1/2 feet above the channel beneath, and there was no railing at the sides, and never had been while the defendants were in office. In 1892 the bridge was old, and the defendants repaired it by putting in some new joists or stringers, and covering it with new planking, so as to make it safe for steam threshing machines. It was left in the same condition in other respects as before. On November 28, 1893, plaintiff was driving north on the highway, going after a hog, with a span of horses and a lumber wagon, with sideboards on top, and when on the bridge the horse on the left side was frightened, and crowded the other one off the east side. Plaintiff went over with the wagon, and his leg was broken at the hip joint. To sustain his charge that the defendants had means in their hands to put up a railing, or protection, so that his team could not have gotten off, plaintiff proved the amounts paid to defendants for road and bridge taxes in 1892 and 1893. Defendants, to meet the charges of plaintiff, proved that there were 83 bridges in their town to be cared for by them. Of these bridges 71 were of wood, 7 were of iron, and 5 were stone arches. In 1892 there were unusual floods, and most of the bridges were damaged, and 4 were carried away. Those that were washed away had to be replaced, and the damaged ones repaired. Five new iron bridges were built in 1893, and the moneys at defendants' command had all been exhausted before the accident, and they had exceeded their funds to the amount of $1,300. They exercised their best judgment in the expenditure of the moneys on the roads and bridges of the town, and there was no evidence tending to prove any intentional neglect of duty or improper motive in what was done.

‘Complaint is made in behalf of appellant that errors occurred on the trial in rulings on the admissibility of evidence and instructing the jury, and that the damages awarded were inadequate; but it will not be necessary to notice any of these questions for the reason that, in our judgment, the action could not be maintained, and the cross errors assigned should be sustained. Whether an action will lie against commissioners of highways for damages resulting to an individual from the manner in which they have discharged their official duty to the public, on the ground that it was not discharged with reasonable prudence and skill, has not been settled in this state by any decision of the supreme court. It has often been decided that an action for such damages cannot be maintained against the town. Hedges v. County of Madison, 1 Gilman, 567;Town of Waltham v. Kemper, 55 Ill. 346;Bussell v. Town of Steuben, 57 Ill. 35. And these decisions, that there is no common-law liability of towns in that regard, are in accordance with the authorities generally. Although duties are specifically enjoined upon towns by law, and they have power to levy taxes and raise money for their performance, they are not liable in a common-law action for damages sustained by an individual on account of such action being neglected or inadequately performed. Russell v. County of Devon, 2 Term R. 667; Riddle v. Proprietors, etc., 7 Mass. 169;Mower v. Inhabitants of Leicester, 9 Mass. 247;Eastman v. Meredith, 36 N. H. 284. The reasons always given for exempting towns from such actions are that they are established as local subdivisions and agencies of the state for governmental purposes, and that duties are imposed upon them, without their assent, exclusively for public purposes. The same reasons apply with at least equal force to commissioners of highways as an agency through which a town performs a public duty. Any person elected to that office who shall refuse to serve is subject to a penalty of $25. Rev. St. c. 139, art. 9, § 7. The purpose of that penalty is to enforce the acceptance of the office, and its payment does not discharge one elected to a town office from the duty of acceptance and performance. He must yield to the public welfare, and the office is regarded as a burden which he is bound in the interest of the public to bear, to the end that the government may be carried on. People v. Williams, 145 Ill. 575, 33 N. E. 849. The office is not one of profit, for the public only compensate a commissioner at about the rate of a day laborer. If he should neglect to perform any of the duties enjoined upon him while acting the public injury renders him liable to a penalty of not less than $10 nor more than $50. The office and its duties are compulsory, and are imposed upon the individual for public purposes, in like manner as upon the town. The courts draw a distinction between the town and the municipal corporation proper, on the question of liability, in favor of the town; and it would seem most unjust to reverse the rule as to the town officer, and hold him to the same responsibility as a city or other municipal corporation. It is questionable whether such a rule would tend to any better service of the public. If the officer must answer out of his private fortune for what a jury may regard as a deficiency in judgment, men capable of filling the office, who have any property, would naturally avoid it, especially in view of the extent of the industry of bringing damage suits covering with duties and neglects every filed of imagination as well as of fact. The statute has provided means for redressing the public wrong by a penalty, and that is sufficient to enforce the public duty.

‘It is provided by section 2 of the statute in regard to roads and bridges as follows: ‘The commissioners of highways shall have the charge of the roads and bridges of their respective towns, and it shall be their duty to keep the same in repair, and to improve them so far as practicable.’ They are clothed with discretion as to the practicability of making improvements and as to the best methods to be employed. Hotz v. Hoyt, 135 Ill. 388, 25 N. E. 753. Attention is called by counsel to the decision in Tearney v. Smith, 86 Ill. 391, as establishing the doctrine that repairing a highway is a ministerial act, and that the commissioners are responsible for damages for the negligent performance of such an act. Even if it is proper to call the act of repairing a highway or bridge ministerial, it is a duty which unquestionably involves the exercise of judgment and discretion as to time, method, and means, and is readily distinguishable from such ministerial duty as merely involves the following of specific directions and instructions. It was inmaterial in that case whether the act should be characterized as ministerial or not. It was a suit by an adjoining landowner for flooding his land in draining the highway, and the defendants could not have done that in a judicial or ministerial capacity. The court said that the underlying principle in the case was that the public had no right so to use its own as to injure another, and that the principle obtained as to...