Schmidt v. City of Chicago

• Decision Date: 07 April 1936
• Docket Number: Gen. No. 38197.
• Citation: 1 N.E.2d 234,284 Ill.App. 570
• Parties: SCHMIDT v. CITY OF CHICAGO.
• Court: United States Appellate Court of Illinois

284 Ill.App. 570

1 N.E.2d 234

SCHMIDT

v.CITY OF CHICAGO.

Gen. No. 38197.

Appellate Court of Illinois, First District, Second Division.

April 7, 1936.

Appeal from Circuit Court, Cook County; Herbert S. Anderson, Judge.

Action by Harriet Schmidt against the City of Chicago. Judgment for plaintiff, and defendant appeals.

Affirmed. William H. Sexton, A. M. Smietanka, and Lionel J. Berc, all of Chicago, for appellant.

Harry A. Kahn and Irving K. Russ, both of Chicago, for appellee.

SULLIVAN, Justice.

This is an action brought by plaintiff, Harriet Schmidt, against defendant, city of Chicago, for injuries sustained through the alleged negligence of defendant's employee in the operation of a truck hauling garbage laden trailers to the city incinerator. Upon the jury's verdict, judgment was entered against defendant for $1,250. This appeal followed.

Plaintiff's declaration consisted of eight counts, of which those numbered 2, 4, 6, 7, and 8 were dismissed at the close of her case. Count 1 alleges in substance that on June 29, 1933, plaintiff was a passenger in an automobile proceeding in a southeasterly direction on Elston avenue, a public highway, in Chicago, at or near its intersection with Division street, and was in the exercise at all times of due care caution, and diligence for her own safety that, pursuant to its powers and duties defendant, by its duly authorized agents servants, and employees was possessed, had charge and control of, and was operating in and about its private and corporate business, a certain motor vehicle, commonly known as an autotruck, with trailers attached thereto, for transporting and carrying away garbage and other refuse; that such truck with attached trailers was being driven in a northwesterly direction upon Elston avenue aforesaid at or near its intersection with said Division street; and that defendant, by and through its agents employees, and servants, in utter disregard of its duty, so carelessly, negligently wrongfully, and improperly drove said motortruck and trailers that same were caused to and did run into and collide with an automobile in which plaintiff was riding as a passenger, causing her to sustain severe injuries as a result thereof. This count also set forth in hæc verba statutory notice and alleged service of same on the mayor, city attorney, corporation counsel and city clerk of the city of Chicago.

The third count is identical with the first except that the negligence charged was driving at a high, dangerous, excessive and unreasonable rate of speed.

The fifth count is also identical with the first except that the negligence charge was the violation of section 40 of the Motor Vehicle Act (Smith-Hurd Ann.St. c. 95 1/2, § 54) concerning the duty of the driver of a vehicle to keep to the right of the center line of the street.

The facts so far as they are essential to a consideration of the issues involved are that on June 29, 1933, plaintiff was a passenger sitting in the rear seat of a Cadillac sedan owned and driven by his bother, Lee Blockus; that seated in the rear seat with her was her brother-in-law, Walter Pallacki, and Matthew Scarbuck sat in the front seat to the right of the driver; that it had commenced to rain about ten minutes prior to the accident; that Blockus was driving the car in a southeasterly direction on the west side of Elston avenue, immediately to the west of the southbound street car tracks; that, as he approached within 300 feet of the intersection of Elston avenue and Division street, a truck coming from the east on Division street and drawing three trailers being used by the city of Chicago to remove garbage turned into Elston avenue to proceed in a northwesterly direction; that, as the truck and trailers completed the turn, the last trailer skidded west across the width of Elston avenue and struck the car in which plaintiff was riding just as the driver, Blockus, had swerved into a gasoline station driveway to avoid being struck by the skidding trailer; that the truck and trailers continued northwesterly on Elston avenue to Blackhawk street; that the driver of a Ford truck, who had witnessed the accident, together with Pallacki, followed the truck and trailers to the point where they stopped at Blackhawk street and informed the driver of the accident, whereupon he turned around and went back to the scene of the collision; that plaintiff, who was rendered unconscious by the collision, was removed from the car and taken to St. Mary's Hospital; that the street was very slippery at the intersection of Elston avenue and Division street; that, as a result of the accident, plaintiff sustained injuries which compelled her to remain at the hospital one week and at home for two weeks; and that she has suffered headaches and dizzy spells ever since.

The contentions of defendant which are seriously urged and which are presented for our determination are: (1) That in the removal and disposition of garbage by the operation of trucks and trailers, the city of Chicago was exercising its police power to protect the public health and suppress disease, which is a governmental function, and that therefore it could not be held liable for the negligence of the driver of its truck and attached trailers; and (2) that the statutory notice to the city of plaintiff's claim was fatally defective in that it did not correctly state the attending physician's address.

Plaintiff's theory is that in removing and disposing of garbage the municipality was engaged in a corporate or quasi private function and is liable for the negligence of its employees; and that the notice of her claim, which she served upon the city through its officers, was in substantial compliance with the statutory requirements.

As to defendant's first contention, while our Supreme Court has not, in so far as we have been able to ascertain, passed upon the specific question of the liability of a municipality for the negligence of its servants and employees in the removal of garbage, we think that the rule established in this state imposing liability on municipalities for the negligence of their employees and servants in the exercise of analogous and kindred functions is applicable as well to the removal and disposition of garbage.

In the recent case of Wasilevitsky v. City of Chicago, 280 Ill.App. 531, where one of three garbage laden trailers attached to a truck owned and operated by the city of Chicago struck an automobile and injured Wasilevitsky, the precise question raised in the instant case was before the court and was determined adversely to the city in a well-considered opinion written by Justice O'Connor. We are in full accord with the views expressed therein, and quote at length from that opinion:

“Whether the City was acting in a governmental capacity at the time in question, in which case there would be no liability, or whether it was acting in a ministerial capacity, in which case there would be liability, is a question not free from difficulty. Somewhat similar questions have been before the courts of this country on numerous occasions and the opinions and decisions are irreconcilable. And as pointed out by this court in Bedtke v. City of Chicago, 240 Ill.App. 493, we think the reason for such diversity of opinion has ‘arisen from a misconception of early law, the ordinary principles of the law pertaining to torts ought to apply to a municipal corporation; in other words, such a corporation, like any other principal, should be liable for the torts of its agents, and the distinction between governmental and ministerial functions, used in determining the liability of a municipal corporation for negligence in affirmative conduct, should be abandoned. 34 Yale Law Journal, 229; 4 Dillon, Mun.Corp., p. 3002.

“ ‘ “Injuries caused by negligence of municipal employees are proper items of expense to be borne by the community. For omission to perform public duties running to the community as a whole there should of course be no municipal liability to private individuals. But in the undertaking of an affirmative course of conduct it is immaterial that the duty being performed is a public one from which the municipality derives no profit. Liability should be based upon the exaction of the law that everyone, in the performance of an affirmative course of conduct, must at his peril measure up to a standard of due care.” 34 Harv.Law Rev., p. 66.’

“In the Bedtke Case we held that the City of Chicago was liable for the negligence of its servants in the use of a portable incinerator in an alley back of plaintiff's premises which caused the destruction by fire of certain personal property belonging to plaintiff. Certiorari was denied by the Supreme Court (241 Ill.App.XV). In that case we discussed a number of authorities, among them Johnston v. City of Chicago, 258 Ill. 494 [101 N.E. 960,45 L.R.A.(N.S.) 1167, Ann.Cas.1914B, 339], in which it was held that the City was liable for an injury sustained by Johnston through the negligence of the driver of an automobile used to deliver books from the public library. The court there said [258 Ill. 494, at page 497, 101 N.E. 960,45 L.R.A.(N.S.) 1167, Ann.Cas.1914B, 339]: ‘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 employees. * * * [258 Ill. 494, 499, 500, 101 N.E. 960,45 L.R.A.(N.S.) 1167, Ann.Cas.1914B, 339]. The organization of this public library is for the exclusive benefit of the territory of the City of Chicago and not for the State at large. It has been organized by the people of that city, through their proper representatives, voluntarily, and the duties to be performed have not been thrust upon the people of said city nolens volens. * * * When a city under no obligation to light its streets voluntarily...