People of State of Illinois v. Maryland Casualty Co.

• Decision Date: 09 December 1942
• Docket Number: No. 7963,7969.,7963
• Parties: PEOPLE OF STATE OF ILLINOIS, for Use of TRUST CO. OF CHICAGO et al., v. MARYLAND CASUALTY CO. et al. MARYLAND CASUALTY CO. et al. v. BOWEN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

132 F.2d 850 (1942)

PEOPLE OF STATE OF ILLINOIS, for Use of TRUST CO. OF CHICAGO et al., v. MARYLAND CASUALTY CO. et al. MARYLAND CASUALTY CO. et al. v. BOWEN et al.

Nos. 7963, 7969.

Circuit Court of Appeals, Seventh Circuit.

December 9, 1942.

Joseph D. Ryan, Louis P. Miller, and Jack L. Sacks, all of Chicago, Ill., and John E. Cassidy, Louis F. Knoblock, and John F. Sloan, Jr., all of Peoria, Ill., for appellants

J. F. Dammann, Geo. Fiedler, Louis L. Dent, Geo. M. Weichelt, John P. Hampton, Roger D. Doten, Walter Brewer, and Edward J. Farrell, all of Chicago, Ill., for appellees.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

MINTON, Circuit Judge.

There are two sets of plaintiffs in this appeal: first, the People for the use of the Trust Company of Chicago, administrator of the estates of four decedents to recover for their debts; and second, the People for the use of a number of individual plaintiffs to recover for personal injuries. The complaints allege identical facts, except as to the parties plaintiff. The complaints charge that it was the duty of A. L. Bowen and Blanche Fritz, Director and Assistant Director, respectively, of the Department of Public Welfare, and Dr. A. C. Baxter, Director of the Department of Public Health of the State of Illinois, and Dr. Ralph T. Hinton, as Managing Officer of the Manteno State Hospital, a State institution for the treatment of the insane, to furnish safe drinking water to persons in the hospital and on the premises thereof; that the officers carelessly, negligently, wantonly and wilfully permitted the water in the water supply system of the Manteno State Hospital to become dangerously contaminated with typhoid bacilli, and to continue so contaminated, although they had the means or could have obtained the means to enable them to furnish safe drinking water; that as a result of said negligent, wanton, and wilful misconduct of these officers in failing to furnish safe drinking water, the persons in the hospital and on the premises, the decedents and the other persons for whom the actions are brought became infected with typhoid fever, and four died and the rest were injured.

The defendants in the original complaints were sureties upon the afore-mentioned officers' bonds. Neither the officers nor the departments of which they were the heads were sued. The defendant-sureties as third party plaintiffs filed their petitions against the said officers as third party defendants, alleging that by the terms of their contracts of suretyship with the officers, the officers were, if there was a breach of the bond, personally liable, and were to save harmless the sureties; that the officers had on demand refused to do so; and judgment against the third party defendants was prayed. An order was made making said officers third party defendants. Thereafter, the third party defendants made a motion to dismiss both the original complaint and the third party complaint. The motion was sustained, and the court entered an order dismissing the original complaint and the third party complaint. The plaintiffs appeal from so much of the judgment as dismissed their complaints, and the third party plaintiffs have filed a cross-appeal from so much of the judgment as dismissed their third party complaint.

On these appeals the questions presented are:

1. Whether said officers are liable for their alleged negligent, wanton and wilful failure to furnish safe drinking water to patients in the Manteno State Hospital and to others on the premises; and

2. If there is such liability, whether there could be recovery against the sureties upon the official bonds.

Neither the decedents nor the other injured persons were inmates of the Manteno State Hospital, but they were alleged to have been lawfully employed at construction work on the premises — by whom, it is not alleged. It is the contention of the plaintiffs as alleged in their complaints and asserted in their brief that it was the duty of the officers "to cause safe water to be furnished at the Manteno State Hospital";¹ that this duty stems from the statutes of Illinois Ill.Rev.Stat.1941, c. 127, §§ 3, 55 et seq., that created the Department of Public Health of which Dr. Baxter was Director; that it was the Department's duty to supervise the health and lives of the people of the State, and to act in a supervisory capacity relative to the sanitary quality and adequacy of public water supplies; that it was the Department's duty to determine standards of purity of drinking water; that it was the Department's duty to make such sanitary investigations as it might deem necessary for the preservation and improvement of public health; that it was the Department's duty to maintain laboratories to examine water; and that it was the Department's duty to make sanitary, health and other inspections and examinations for the charitable, penal and reformatory institutions. It was alleged by the plaintiffs also that it was further the duty of the Department to investigate into the cause of dangerously contagious and infectious diseases when existing in epidemic form, and to take steps to restrict and suppress such diseases when the local health officers neglected or refused to take the necessary measures.

Likewise, it is contended that the Director and the Assistant Director of the Department of Public Welfare owe the same duty, and that this duty stems from the statutes of Illinois, Ill.Rev.Stat.1941, c. 127, §§ 3, 53 et seq., creating the Department and providing that the Board of Administration of the Department shall exercise executive and administrative supervision over the charitable institutions of the State. The Board has the power to appoint and remove superintendents or managing officers of the State charitable institutions, as well as all other employees of the institutions. The Board was given power to promulgate necessary rules and regulations. It was also the duty of the Board to visit each State institution at least once a year and inspect every part of the institution. It was further the duty of the Department to examine into the condition of the buildings, grounds, and other property connected with the State charitable institutions, and in case of an emergency, such as the breakdown of equipment, provision was made for making funds available promptly for the repair thereof.

Thus it will be seen that the statutes relied upon are the statutes which create important executive departments of the State of Illinois and provide officers to administer such departments. The statutes then provide for the powers and duties of these officers, in order that the State may carry out the functions of supervising the health of the people of Illinois, and discharge its duty to provide institutions for the care and treatment of the insane and for the supervision thereof as to their sanitary and health conditions. In the discharge of such obligations directed by the statutes, the State of Illinois is exercising a governmental function under its police power, which authorizes it to look after the health and welfare of its citizens. People ex rel. Barmore v. Robertson, 302 Ill. 422, 427, 134 N.E. 815, 22 A.L.R. 835.

No specific duty to furnish safe drinking water at the Manteno State Hospital is provided by statute. If any exists, it must stem from the general undertaking assumed by the State of Illinois to provide generally for the health and welfare of its citizens in and out of State institutions. This is a duty owing by the State to its citizens. This is not a duty owing by these officers of the Department of Health and the Department of Public Welfare to anyone. The officers are the mere instrumentalities or agents through which the State undertakes to discharge its assumed duty to its citizens. When the State defines by statute the powers and describes the duties of the officers of these departments, it is not creating duties the officers owe to the individuals who may constitute the general public of Illinois; it is merely outlining the State's assumed public duty.

In such a situation, the law seems to be clear that if the duty discharged is a public duty and not a duty which the individuals owe to any particular person, then for their negligence or wanton or wilful omission in the performance of this public duty, the officers are not liable, except to the State. (Note Ill.Rev.Stat.1939, Ch. 38, par. 449, providing for the prosecution of these officers if they do not perform their duty.) See, also, People v. Bowen, 376 Ill. 317, 33 N.E.2d 587.

The rule applicable in a case of this kind is expressed correctly in Cooley on Torts, (1932 Ed. Sec. 300) as follows:

"Sec. 300. When Officers Liable to Private Suits. * * * Now, no man can have any ground for a private action until some duty owing to him has been neglected; and if the officer owed him no duty, no foundation can exist upon which to support his action.

* * * * * *

"The rule of official responsibility, then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages."

The author of the same text, Section 301, illustrates the application of the rule as follows:

"Sec. 301. Quarantine Officer. Another illustration of the general rule is that of the quarantine officer. His duty requires him to take the proper steps to prevent the spread of contagion, and he will be culpable in a very high degree if he neglects to do so, because the duty is a public duty of the very highest importance and value. Let it be supposed that a neglect occurs, and that a great number of...