Roumbos v. City of Chicago

• Decision Date: 25 October 1928
• Docket Number: No. 18237.,18237.
• Citation: 163 N.E. 361,332 Ill. 70
• Parties: ROUMBOS v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

332 Ill. 70

163 N.E. 361

ROUMBOS

v.CITY OF CHICAGO.

No. 18237.

Supreme Court of Illinois.

Oct. 25, 1928.

Error to Second Branch, Appellate Court, First District, on Appeal from Circuit Court, Cook County; John A. Swanson, Judge.

Action by Tom G. Roumbos, administrator, against the City of Chicago. Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings certiorari.

Affirmed.Francis X. Busch, Samuel, A. Ettelson, Corporation Counsel, and John J. Kelly and William D. Saltiel, City Attys., all of Chicago (Daniel V. Gallery and Cora B. Hirtzel, both of Chicago, of counsel), for plaintiff in error.

Charles C. Spencer, Arthur A. House, Albert Schaffner, and Emmanuel G. Coliopoulos, all of Chicago, for defendant in error.

DUNN, J.

This writ of certiorari granted on the petition of the city of Chicago brings before us for review the record of a judgment of the Appellate Court for the First District affirming a judgment of the circuit court of Cook county against the city for negligently causing the death of Marie Roumbos, and the question presented is whether the is liable for damages caused by the negligence of an employee of the street-cleaning department of the city in performing his duty.

Marie Roumbos, a little girl four years old, was living with her parents on the second floor of a building which stood on the north side of Hope street, flush with the sidewalk. She was sitting at the edge of the sidewalk, on the lower step of the stairway leading from the second floor to the street. A street sweeper in the employ of the city swept a pile of trash, shown to be about one or two feet high and three feet in circumference, to the curb, about five or six feet from the house, set fire to it and went away. The wind blew the flame across the sidewalk. It caught the child's dress, and she was so badly burned that she died the same day. The city introduced no evidence but at the close of the plaintiff's evidence moved for an in structed verdict in its favor. The motion being denied, the cause was submitted on the evidence for the plaintiff and a verdict for $5,000 was returned, upon which judgment was rendered.

[1][2] The first count of the four in the declaration was based on an ordinance which the court did not admit in evidence and therefore need not be considered. The fourth count alleged that the fire was attractive to children and the child was attracted by it and unavoidably came in contact with it. This count is not sustained by the evidence. The second and third counts allege the wrongful and negligent starting of the fire in the street and negligently leaving it unguarded. The plaintiff in error argues that these counts do not state a cause of action because they do not state facts showing that the servants of the city, in doing the acts complained of, acted within the scope of their authority or that such acts were not in the performance of a governmental function. The defendant having filed a plea of the general issue after its general demurrer to the declaration was overruled, thereby admitted the sufficiency of the declaration and waived its right to assign error on the overruling of the demurrer, but the objection that the declaration was not sufficient to sustain the judgment was still open to it. In the consideration of the question in this court, however, the rule which prevails on the consideration of a demurrer that the pleading is to be taken most strongly against the pleader is reversed and the pleading upon which the judgment is based will be liberally construed to sustain the judgment.

[3][4] The third count stated that the defendant, by its agents and servants acting within the scope of their employment, kindled a fire of large quantities of rubbish, paper, and other combustible material in the street, and it is said that the allegation that the servants were acting within the scope of their authority states nothing but a conclusion. Assuming, but not deciding, this statement to be correct, it was still an ultimate conclusion of fact, to be shown by the evidence, whether the act was within the scope of the employment of the servants or not. Even if the fact be regarded as defectively or improperly stated, the question was presented and the defendant accepted the issue offered by filing the general issue, which required proof of the fact thus defectively or imperfectly stated, without which it is not to be presumed that the judge would have directed or the jury given a verdict for the plaintiff. In such case the defect in the declaration is aided by the verdict. It is further insisted that if the count is not bad for this reason it is still defective for want of an allegation that the servants in kindling the fire were not performing a governmental function. The allegation is that the servants, while acting within the scope of their employment, kindled the fire of divers large quantities of rubbish, paper and other combustible material in the street, and after verdict this implies that in the course of their employment they were gathering and disposing of the material in the process of cleaning the street. This presents the real question in the case-whether the city is liable for the negligence of its employees engaged in cleaning the streets.

[5][6][7][8]There was evidence tending to show that the fire was started by a street sweeper employed by the plaintiff in error in cleaning the street, who in the course of his employment collected his sweepings together in a pile and set fire to them, causing the death of the defendant in error's intestate, and the judgment of the trial court entered on the verdict of the jury and affirmed by the Appellate Court is therefore binding upon the plaintiff in error as to the facts. If the plaintiff in error were a private corporation it would clearly be liable for the injury under the doctrine of respondeat superior. There is a material distinction, however, in the applicability of this doctrine in the case of municipal corporations, which are not, in general, liable to a private action for damages caused by the negligence of their agents of servants in the performance of the governmental powers of such corporations unless such action is specially authorized by statute, while they are liable for injuries negligently caused by their employees while engaged in duties of a private or local nature not involving the exercise of governmental power. The division of municipal functions into public and governmental on the one hand and private and corporate on the other is not well defined but is vague and indefinite. No definition of the terms has been declared which is of much practical value or ‘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. It has been said that all that can be done with safety is to determine each case as it arises. Lloyd v. Mayor, etc., of New York, 5 N. Y. 369, 55 Am. Dec. 347; Cobb v. Mayor, etc., of City of Dalton, 53 Ga. 426. 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. Johnston v. City of Chicago, 258 Ill. 494, 101 N. E. 960,45 L. R. A. (N. S.) 1167, Ann. Cas. 1914B, 339.

‘The whole doctrine of the liability of public corporations for the torts of their officers or agents is affected and modified by the principle that the tortious act or omission must be in violation not of a public but of a private duty. The reason and the essence of this rule is clear and easily to be understood, but its application to the specific cases is often of great difficulty. The rule is laid down in a recent Texas case (City of Galveston v. Posnainsky, 62 Tex. 118 ), which is approved by the editors of the American and English Encyclopedia of Law: ‘So far as municipal corporationsof any class, and however incorporated, exercise powers conferred on them for purposes essentially public-purposes pertaining to the administration of general laws made to enforce the general policy of the state-they should be deemed agencies of the state, and not subject to be sued for any act or omission occurring while in the exercise of such power, unless, by statute, the action be given; that, in reference to such matters, they should stand as does sovereignty, whose agents they are, subject to be sued only when the state, by statute, declares they may be. * * * In so far, however, as they exercise powers not of this character, voluntarily assumed-powers intended for the private advantage and benefit of the locality and its inhabitants-there seems to be no sufficient reason why they should be relieved from that liability to suit and measure of actual damage to which an individual or private corporation exercising the same powers for a purpose essentially private would be liable.’' 1 Beach on Public Corp. § 261.

The principle upon which municipal corporations, such as villages, towns and cities, incorporated by special charters or voluntarily organized under general laws, are held liable to individuals injured by the negligent acts of their agents and servants in respect to corporate duties, while public involuntary quasi corporations, such as counties, townships, school districts and road districts, are not liable to respond in damages in a civil action for negligence in the performance of public duties unless such action is given by the statute, was considered in Elmore v. Drainage Com'rs, 135 Ill. 269, 25 N. E. 1010,25 Am. St. Rep. 363, where it was said:

‘That a private corporation formed by voluntary agreement, for private purposes, is held to respond in a civil action for its...