The City of Joliet v. Harwood

• Decision Date: 30 September 1877
• Citation: 1877 WL 9673,29 Am.Rep. 17,86 Ill. 110
• Parties: THE CITY OF JOLIETv.WILLIAM HARWOOD.
• Court: Illinois Supreme Court

86 Ill. 110

1877 WL 9673 (Ill.)

29 Am.Rep. 17

THE CITY OF JOLIET

v.WILLIAM HARWOOD.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Will County; the Hon. JOSIAH MCROBERTS, Judge, presiding.

This is an action by Harwood against the city, brought before a justice of the peace, taken by appeal to the circuit court, and there tried by the court, without a jury. It appeared upon the trial that the city of Joliet let a contract to O'Riley to construct a sewer through certain of its streets, according to certain plans and specifications. The work to be done was such that it was necessary to the performance of the contract that the excavation in a part of a principal street should be done by blasting rock. Each side of the street was bounded by houses. By the agreed state of facts, on which the case was submitted to the circuit court, it appears that the contractors “used all due care, skill, and caution in the discharge of, and the covering of, all blasts discharged in the prosecution of the work; that from, and by means of, a blast in said sewer a stone was thrown against, and struck, a large front glass of a store room in the store building of plaintiff, then owned by plaintiff and situated on said street in said city, and that the glass was thereby broken and rendered worthless; that the blast from which plaintiff was damaged was covered as O'Riley had been in the habit of doing--apparently in a secure and skillful manner, but not so well as to prevent any stone from flying out.”

Judgment was given against the city for the value of the glass, and defendant appeals.

Messrs. HOUSE, HAGAR & FLANDERS, for the appellant.

Mr. THOMAS H. HUTCHINS, for the appellee.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

It is insisted that O'Riley, the contractor, is responsible for this injury, and not the city; and this upon the position that where public work is done by an independent contractor, with the city, the doctrine of respondeat superior does not apply. Dillon, in his excellent work on Municipal Corporations (sec. 792), says: “Such is the general rule; but it is important to bear in mind that it does not apply where the contract directly requires the performance of work intrinsically dangerous, however skillfully performed. In such case a party authorizing the work is regarded as the author of the mischief resulting from it, whether he does the work himself or lets it out by contract.”

In this case the work which the contractor was required by the city to do was intrinsically dangerous, however carefully or skillfully done. The right of recovery in this case does not rest upon a charge of negligence on the part of the contractor; it rests upon the fact that the city caused work to be done which was intrinsically dangerous--the natural (though not the necessary) consequence of which was the injury to plaintiff's property. In such case the city is responsible. The judgment must be affirmed.

Judgment affirmed.

Mr. JUSTICE SCOTT, dissenting:

By ordinance the city of Joliet provided for the construction of a sewer on certain streets within its corporate limits. The work to be done was particularly described, and was to be done under the super-intendence of the city surveyor, conformably to drawings and profile made part of the ordinance. The contract for furnishing all the materials and doing all the work necessary to complete the sewer in accordance with the provisions of the ordinance was let to James O'Riley.

The contractor entered upon the performance of his contract, and in constructing the sewer on Jefferson street, in front of a building owned by plaintiff, it became necessary to excavate rock, which had to be done by blasting, in doing which a stone was thrown with such force that it struck and broke a glass in a window of plaintiff's store of the value of $180; and it is to recover the damage done to the glass that this suit was brought.

It is admitted the contractor was a competent and skillful man in such work; that he employed competent and skillful assistants for doing the work; that in doing it, and making the necessary excavation by blasting, he and his employees exercised all due care, skill, and caution in discharge of and covering all blasts made in the prosecution of the work, and that the blast from which plaintiff's property was damaged was covered as the contractor and his men had been in the habit of doing--apparently in a secure and skillful manner, but not so well as to prevent any stone from flying out.

It will be observed the admitted facts exonerate the city from all blame in letting the contract to an incompetent person; but, on the contrary, it is conceded both he and his employees were careful and skillful persons in that department of labor. Hence the single question presented is, whether, under the admitted facts, the city is responsible for the injury to plaintiff's property; or, to state the question differently, whether that relation existed between the city and the contractor that, upon the doctrine of respondeat superior, the corporation could be made answerable for the damages sustained by plaintiff.

The doctrine on this subject, as I find it in the elementary works, is: the principle of respondeat superior does not extend to cases of independent contracts, where the party for whom it is being done is not the immediate superior to those guilty of the acts that produce the injury, and has no control over the manner of doing the work. The rule is otherwise where the work is dangerous in itself, no matter how skillfully done. In such cases the party at whose instance the work is undertaken is regarded as the author of the mischief that flows from it, although he may have let the contract to another. Dill. on Mun. Corp., sec. 792; Shear. & Redf. on Neg., sec. 142. Cases...