{ "id": 2677606, "name": "James Fields, Appellee, v. City of Johnston City, Appellant; Mary Mathis, Appellee, v. City of Johnston City, Appellant; A. J. Follis, Appellee, v. City of Johnston City, Appellant", "name_abbreviation": "Fields v. City of Johnston City", "decision_date": "1908-09-12", "docket_number": "", "first_page": "485", "last_page": "492", "citations": [ { "type": "official", "cite": "143 Ill. App. 485" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "61 Ill. 431", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2461034 ], "opinion_index": 0, "case_paths": [ "/ill/61/0431-01" ] }, { "cite": "197 Ill. 264", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 844080 ], "opinion_index": 0, "case_paths": [ "/ill/197/0264-01" ] }, { "cite": "47 Ill. App. 141", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2439257 ], "opinion_index": 0, "case_paths": [ "/ill-app/47/0141-01" ] }, { "cite": "89 Ill. App. 22", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5279233 ], "opinion_index": 0, "case_paths": [ "/ill-app/89/0022-01" ] }, { "cite": "212 Ill. 9", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3310609 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/212/0009-01" ] } ], "analysis": { "cardinality": 654, "char_count": 15196, "ocr_confidence": 0.487, "pagerank": { "raw": 1.4975956836136062e-07, "percentile": 0.6645462727749765 }, "sha256": "caeaeb389767fbf593b93ae69994ccf06fcab0b67c777d45ec0137bd4a298071", "simhash": "1:aabfefd2b66e4120", "word_count": 2542 }, "last_updated": "2023-07-14T18:28:23.290304+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "James Fields, Appellee, v. City of Johnston City, Appellant. Mary Mathis, Appellee, v. City of Johnston City, Appellant. A. J. Follis, Appellee, v. City of Johnston City, Appellant." ], "opinions": [ { "text": "Mr. Justice Myers\ndelivered the opinion of the court.\nThese three suits, in case, were brought by appellees to recover damages to their respective properties from the alleged negligence of the defendant, the city of Johnston City, a municipal corporation, in the construction and maintenance of its public sewerage system by which it is claimed by appellees that large quantities of water were caused to flow over and upon their property, thereby damaging the same. By agreement of the parties the three suits were consolidated and tried by the same jury. The declarations, in substance, are the same in each case, and each declaration consisted of two counts. The first count charges that the plaintiff was lawfully possessed of certain premises (describing the same), which the plaintiff used and enjoyed as a residence property, but that the defendant, a duly incorporated city, wrongfully made or caused to be made a certain sewer, and wrongfully extended the same through and under a certain embankment or levee near to the premises of plaintiff in a careless, negligent and improper manner, and maintained said sewer through and under said embankment, or levee; and that by reason thereof large quantities of foul sewerage, rain and surface water ran and flowed through said sewer and through or under said embankment, to and emptied upon the premises of plaintiff, and thereby causing damage to plaintiff\u2019s premises. The second count is substantially the same as the first.\nThe defendant demurred, the demurrer was overruled, and the plea of not guilty filed, and issue joined. A trial by jury resulted in verdict with damages assessed in favor of each of the plaintiffs. A motion for new trial in each case was overruled and judgment rendered on the verdict. The defendant appealed.\nAppellees filed in this court a motion to expunge from the bill of exceptions a purported amendment which was made at a term of the Circuit Court subsequent to that at which the judgment was rendered and after the expiration of time allowed for filing a bill of exceptions. The motion was taken with the case, but inasmuch as there is reversible, error shown by the record without the amendment, we do not deem it necessary to decide the motion, but to settle questions of law likely to arise on another trial, will consider the errors assigned as though the amendment was legally authorized and properly allowed.\nIt appears in evidence that defendant, on or about the 1st day of December, 1906, entered into a written contract with one H. H. Jenkins, to construct for it a sewerage system for the city, according to plans and specifications furnished; that the plan adopted was practical and of standard construction; that if the construction had been according to contract and specifications, there would have been no injury or damage to plaintiffs\u2019 property; that said sewer was not completed and accepted by defendant until after the time when it is claimed that water overflowed plaintiffs\u2019 premises; that during the construction and before the completion of said sewer there were heavy rains in the vicinity of Johnston City, and at times in which the sewer was to be laid water from the ditch or from some of the sewer pipes overflowed plaintiffs\u2019 premises; that at all of these times the mouth of the in-completed sewer was closed by sand bags placed therein, thereby preventing any water from entering said sewer at the mouth, which at that time had not been extended to the creek or proposed outlet. There is evidence in support of appellees\u2019 contention, that the sewer was defectively constructed, that the joints were not cemented nor the work in other respects done according to contract and specifications. Witnesses testify that the pressure of water in the sewer forced open the joints through which the water escaping filled the sewer trench and overflowed upon the plaintiffs\u2019 lots. It is claimed by appellees that the injuries complained of, the damages to their property, was caused by the negligent, careless and imperfect construction of the sewer in a public street of the city.\nThe only error to which appellant\u2019s argument is directed are those of the third and fourth assignment, the giving of the plaintiffs\u2019 instructions and the refusal of instructions offered by the defendant. All of appellant\u2019s refused instructions embody the propositions of law which would relieve the city of liability, on the ground that the damages for which the suits were brought were due to the negligence of an independent contractor engaged in the construction of a city improvement. The first of appellant\u2019s refused instructions will best illustrate the proposition as presented to the court and is as follows:\n\u201cIf you believe from the evidence that the sewer in question in these cases was constructed by H. H. Jenkins, an independent contractor, as explained in these instructions; and if you further believe from the evidence that the plans for constructing said sewer as furnished by said city to said contractor would not necessarily result in damage or injury to the property of the plaintiffs, then the defendant, city of Johnston City, would not be liable for any damages to the property of the plaintiffs caused by any negligent construction of said sewer, unless you further believe from the weight of the evidence that the said sewer, was completed and accepted by the said defendant city at or prior to the time of filing these respective suits.\u201d\nOther instructions correctly defining an \u201cindependent contractor\u201d and properly directing the application of the legal proposition to the facts in this case were tendered and refused. In this we think, the court erred, for propositions as to liability for injuries caused by the negligence of an independent contractor substantially as stated in the instructions is the established law in this state, and is applicable under the facts which the evidence in this case tends strongly to prove. \u201cThe principle of respondeat superior does not as a rule extend to cases of independent contracts where the party for whom the work is to be done, is not the immediate superior of those guilty of the wrongful act, and has no choice in the selection of workmen, and no control over the manner of doing the work under the contract.\u201d 2 Dillon on Municipal Corporations, sec. 1028; Chicago v. Murdock, 212 Ill. 9. But, as said by Dillon, the rule does not apply where the contract directly requires the performance of work intrinsically dangerous, however skillfully performed. In Thompson on Negligence, Vol. 5, sec. 5803, the rule and exceptions are stated as follows: \u201cA municipal corporation is not, however, liable for the negligence of an independent contractor or his employes, unless the acts which caused the injury were done in pursuance of the contract itself, or otherwise under the direction of the city; or unless the act contracted to be done was intrinsically dangerous\u2014such as blasting rocks, excavating for a subway in a street, and proceeding with the work so carelessly that a house abutting on the street falls into the excavation and is destroyed; or unless the act or omission of the contractor is a violation of some primary and inalienable duty of the city, such as the duty of keeping its streets in a reasonably safe condition for public travel; or unless the city, through its officers, reserves a general control over the contractors in respect to the mode and manner of doing the work.\u201d In East St. Louis v. Murphy, 89 Ill. App. 22, wherein the action was for damages caused by the contractor in filling and grading a street, and the rule under discussion was invoked, the court says: \u201cIf the improvement could be reasonably made under the ordinance without casting sand upon the lot, and was made under an independent contract, with supervision by appellant limited to seeing that the contract was executed according to its terms, and without interference in its execution except to this extent, and without complicity in the acts of the contractor in causing sand to be deposited on lots of appellee, then the city is not liable. If, however, the improvement provided for by the ordinance and done in accordance with its provisions, necessarily cast sand upon appellee\u2019s lot and thereby damaged it as charged, then the city is liable whether or not the improvement was made by an independent contractor.\u201d Where the work is intrinsically dangerous, or where the party employing the contractor is under a primary and inalienable duty, either by express statute or by implication of law, the rule does not apply. When the cause of injury is wholly collateral to the contract work and entirely the result of the negligence or wrongful acts of the contractor or his servants, the contractor alone is liable. City of Sterling v. Schiffmacher, 47 Ill. App. 141. In all the cases cited by appellee wherein the question of independent contractor\u2019s liability is invoked, except one, the action was for persona] injuries suffered by persons in the rightful use of the public streets or sidewalks of the city. In those cases and others of the class, the exception obtains and the city may not escape liability for neglig\u2019ence of the contractor for the reason that it is its legal duty to exercise reasonable care to keep its streets and sidewalks in a reasonably safe condition for public use, and it may not delegate that duty to a contractor and thereby escape liability. In City of Chicago v. Murdock, 212 Ill. 9, the city had let a contractor the construction of a water-tunnel, to do which it was necessary to blast the earth and rock with dynamite. The plaintiff\u2019s building was jarred and shaken by the explosion of dynamite in blasting, causing the walls to crack and settle, and it was for this injury to property that the suit was brought. The court holds that the work was intrinsically dangerous, -and for that reason the city could not escape liability, though the damage were done by an independent contractor. Appellees rely upon the further statement made by the court in that opinion, that \u201canother exception to the general rule applicable to the case is that where an individual or corporation does work pursuant to a special franchise or charter power, the doctrine of respondeat superior is applicable.\u201d The exception here stated has no application in the case at bar, for reasons made clearly apparent by the opinion of the Supreme Court in Foster v. City of Chicago, 197 Ill. 264. It was there held that the city was not liable for injuries caused by the negligence of an independent contractor engaged in constructing a sewer in a public alley, when the city under the contract had no more power of supervision than appears to have been reserved in the contract with Jenkins in this case. In the Murdock case, supra, the entire work was under the immediate direction and superintendence of the Commissioner of Public Works, who had the power to select or reject material and labor. In that case as in the case of City of Chicago v. Dermody, 61 Ill. 431, which the court cites as authority, the statute and ordinance required the Commissioners to take charge of the work and see that it was performed according to plans and specifications. \u201cThe requirement that the time and manner of doing the work must be satisfactory to the city\u2019s commissioners of public works does not include the means employed, and is limited by the provision of the contract. * * * The contractor was not required to take his orders day by day from the city. He was to be guided by the contract and the specifications constituting a part thereof. * * * He was an independent contractor, the city retaining such supervisory power as it might, from time to time, find it necessary to exercise to insure compliance with the contract and to obtain the result called for thereby.\u201d Foster v. Chicago, supra. The language quoted aptly applies to the contract between the appellant and Jenkins. It is not contended that the injury was caused by a defective sewer used by the city. The refused instruction is based upon evidence that the sewer had not been completed and had not been accepted by the city and was not in operation as a sewer when the overflow and injury occurred. If the plaintiffs. had suffered injury to person or property because of the unsafe condition of the street, occasioned by the ditch, overflow of water, or other result from the negligence of the contractor, the city would be liable under all the authorities cited. We are of opinion that the rule as to liability for the negligence of an independent contractor is applicable under the evidence in this record. Otherwise, it would be to hold that the rule will never apply in actions against a municipal corporation.\nThe instructions as to the measure of damages were erroneous, because they directed the jury to consider the depreciation in value of the premises as affected by .the. negligence charged. There is no evidence of permanent injury, nor was damages claimed by the declaration for any depreciation in the value of the property. Only the damages inflicted \" or sustained prior to beginning suit may be proved in this case. The overflow was not caused by a permanent, completed sewer, nor was such claim made. Under no theory warranted by the pleading and evidence could the plaintiffs recover for depreciation in the value of the property. The appellees\u2019 sixth instruction is subject to the criticism made by appellant. The measure of damages' is not the same, whether the premises are occupied by the owner or by a tenant. In an action by the owner for injuries to premises occupied by a tenant, the loss in rent or cost of repairs made necessary by the injury done covers substantially all that may be considered in estimating damages; whereas the .owner-occupant may have allowance for discomfort and inconvenience as well as expense of repair.\nFor the errors indicated the judgment of the Circuit, Court will be reversed and the cause remanded.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Myers" } ], "attorneys": [ "Denison & Spiller, for appellant; J. E. Carr, of counsel.", "Pillow, Smith & Stone and Clemens & Slater, for appellees." ], "corrections": "", "head_matter": "James Fields, Appellee, v. City of Johnston City, Appellant. Mary Mathis, Appellee, v. City of Johnston City, Appellant. A. J. Follis, Appellee, v. City of Johnston City, Appellant.\n1. Municipal cobporations&emdash;when not responsible for negligence of independent contractor. A municipal corporation is not responsible for the negligence of an independent contractor where it appears -that the work about which such independent contractor was employed was not intrinsically dangerous and where such work was not such as a municipal corporation was under a primary and inalienable duty to perform by itself.\n2. Measure oe damages&emdash;when instruction is erroneous. In an action for injury to real property it is error to instruct a jury that they may consider depreciation of such property in value where no permanent injury has been charged.\nActions in case. Appeals from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.\nHeard in this court at the February. term, 1908.\nReversed and remanded.\nOpinion filed September 12, 1908.\nDenison & Spiller, for appellant; J. E. Carr, of counsel.\nPillow, Smith & Stone and Clemens & Slater, for appellees." }, "file_name": "0485-01", "first_page_order": 503, "last_page_order": 510 }