Wilcox v. the City of Chicago.
| Decision Date | 30 September 1883 |
| Citation | 107 Ill. 334,47 Am.Rep. 434,1883 WL 10307 |
| Parties | FREDERICK W. WILCOXv.THE CITY OF CHICAGO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
Messrs. WILLARD & DRIGGS, for the appellant:
A person standing in the relation of master to one he has selected as his servant from a knowledge or belief in his skill, and who can remove him for misconduct, and whose orders the employé is bound to receive and obey, is liable for his acts of negligence in the business entrusted to him, whether such servant has been appointed directly, or through the intervention of an agent. Quarman v. Bermet et al. 6 M. & W. 509; Milligan v. Hedge, 12 A. & E. 737; Rapson v. Cubitt, 9 M. & W. 710; Martin v. Temperly, 4 Q. B. 298; Reedie v. L. and N. W. Ry. Co. 4 W. G. & G. 255; Spaight v. Tedcastle, 6 App. Cases, 217. See, also, Hinde v. Wabash Nav. Co. 15 Ill. 72; West v. St. Louis, Vandalia and Terre Haute Ry. Co. 63 Id. 545; Sproule v. Hemingway, 14 Pick. 1.
If the appellee had become an incorporated body involuntarily, then it might be deemed to be a part of the State sovereignty, the same as a town or county, and therefore would not be liable. Town of Waltham v. Kemper, 55 Ill. 346; White et al. v. County of Bond, 58 Id. 297; Symonds v. Clay County, 71 Id. 355.
But an incorporated city holds a different relation, and is liable for the non-performance of any duty enjoined by positive requirement contained in the charter, or arising out of its adoption, or the exercise of the powers therein conferred. Clayburg v. City of Chicago, 25 Ill. 535; City of Jacksonville v. Lambert, 62 Id. 519.
One of the duties of a municipal corporation arising out of the voluntary adoption of its charter, is to use reasonable care in the conduct of any work which it undertakes, and the accomplishment of which is within its corporate power. City of Joliet v. Verley, 35 Ill. 58; City of Chicago v. O'Brennan, 65 Id. 160; City of Chicago v. Powers, 42 Id. 169; City of Chicago v. Turner, 80 Id. 419; City of Chicago v. Joney, 60 Id. 383; City of Freeport v. Isbell, 83 Id. 440; City of Chicago v. Dermody, 61 Id. 431.
Mr. JULIUS S. GRINNELL, for the appellee:
A municipal corporation is not liable for the negligence of firemen, appointed and paid by it, who, when engaged in their line of duty, upon an alarm of fire run over a person in drawing a hose reel, etc. Dillon on Mun. Corp. secs. 964, 976; Fisher v. Boston, 104 Mass. 87; Jewett v. New Haven, 38 Conn. 368; Ogg v. Lansing, 35 Iowa, 495; Field v. Des-Moines, 39 Id. 575; Heller v. Mayor of Sedalia, 53 Mo. 159; McKenna v. St. Louis, 6 Mo. App. 320; Howard v. San Francisco, 51 Cal. 52.
Firemen are not the agents or servants of the municipal corporation, but are public officers, agents or servants of the public at large, and the corporation is not responsible for their acts or omissions. Maximilian v. Mayor, 62 N. Y. 160; Smith v. Rochester, 76 Id. 51; O'Meara v. Mayor, 1 Daly, 428; Hafford v. City of New Bedford, 16 Gray, 297.
A city is not liable for the illegal and negligent acts of a policeman. Dillon on Mun. Corp. sec. 975; Odell v. Schrœder, 58 Ill. 353; Jewett v. New Haven, 38 Conn. 368.
Messrs. WILLARD & DRIGGS, in reply, reviewed the authorities cited in behalf of appellee, insisting they were in cases where the legislature had required of the municipality that a fire department be established and operated in a manner generally prescribed in the act, and had no reference to a case like the present, where the action of the municipality in that regard was purely voluntary,--not in obedience to any act of the legislature.
This suit was brought by appellant in the Superior Court of Cook county, against the city of Chicago, to recover damages sustained by appellant by a collision between his carriage and a hook and ladder wagon of the city, through the alleged neglect of the driver of the ladder wagon, whilst in the service of the appellee in saving property from destruction by fire. A general demurrer was filed to the declaration, and sustained by the court, and a judgment rendered against plaintiff for costs. The case was taken to the Appellate Court, and the judgment was affirmed, and it is brought to this court, and the sustaining of the demurrer is assigned for error.
The question presented is, whether the relation of master and servant exists between the driver of the ladder wagon and the city, and it is responsible for the negligent acts of the driver whenever engaged in the performance of his duty under the ordinance of the city, or whether the relation is an exception to the general rule. It has long been settled, and perhaps never questioned, that the master is liable for injury from the negligent acts of his servant whilst performing acts within the line of his duty. But the whole question here turns upon whether that relation exists.
Appellant contends that inasmuch as the city voluntarily undertook to, and did, organize a fire department, which is under the entire control of the city, and as it appoints its officers, pays them and the firemen, and discharges them through its officers, and the whole department is controlled, regulated, and its duties prescribed, by city ordinance, nothing more can be required to create the relation of master and servant between it and its employés. The department is as completely under the control of the city as the board of public works, or any other department of the city government.
The 64th clause of section 62, of chapter 24, Rev. Stat. 1874, confers the power “to erect engine houses, and provide fire engines, hose carts, hooks and ladders, and other implements for prevention and extinguishment of fires, and provide for the use and management of the same, by voluntary fire companies or otherwise.” It is claimed this but confers a power that the city is at liberty to exercise, or not, at will; that it is in no sense compulsory, but its exercise is purely voluntary, and the city having chosen to organize and control the department, it is unlike, in its effects and consequences, the exercise of a power imposed upon the city by legislative requirement,--this is voluntary and that would be compulsory, and this should make a difference in the two cases; that if the legislature had compelled the exercise of this power it would have been exercising a portion of the power of the State, and the city should, in such a case, not be any more responsible for the action of those employés in...
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