Chicago West Division Railway Co. v. Rend

McAllister, J. The demurrer to plaintiff’s declaration being general, the only question presented in this appeal to review the action of the court below in sustaining that demurrer is: does the declaration contain a cause of action, or is it good in substance? Defendants’ counsel insist that it is not good, because there was no sufficient basis shown in it for the recovery of the special damages attempted to be set out, viz: the amount of the judgment recovered by Cornell against plaintiff, for injuries which he sustained while a passenger on plaintiff’s car, at the time defendants willfully and wrongfully, as it is alleged, ran upon and into the same with their wagon. There are two classes of cases of wrongful acts or omissions between which there is a marked distinction. One is, that where there is any distinct legal wrong which in itself constitutes the invasion of the right of another, the law will presume that some damage follows, as a natural, necessary and proximate result. In that case, the wrong itself constitutes the right of action. ¡Nothing further is necessary to a recovery, though the extent of it may depend upon the evidence. Cooley on Torts, 69; McConnell v. Kibbe, 33 Ill. 179; Sedg. on Dam. 445; Brent v. Kimball, 60 Ill. 211. The latter class is where the act or omission complained of is not of itself a distinct wrong, and can only become so to any particular individual through injurious consequences resulting therefrom. In such case, this consequence must not only be shown, but it must be so connected by averment and evidence with the act or omission, as to appear to have resulted therefrom according to the ordinary course of events, and as a proximate result of a sufficient cause. Cooley on Torts, supra, and cases in note 1. An instance of this class is, where suit is brought against the cashier of a bank for neglect of duty. If no damage has resulted to plaintiff, then, although the neglect be proved, the plaintiff cannot even recover nominal damages. Commercial Bank v. Ten Eyck, 48 N. Y. 305. Another • is, where suit is brought for verbal slander, where the words are not actionable per se, but become so only by averring and proving special damages, as in Yickars v. Wilcocks, 8 East 1. In such cases, the damages are said to be the gist of the action. Bare negligence, unproductive of damages to another, will not give a right of action; negligence causing damages will do so. Whitehouse v. Birmingham, Can. Co. 2 L. J. Exc. 25; Bailey v. Wolverham Water Works, 6 H. & N. 241; Duckworth v. Johnson, 4 N. & H. 653. But in cases belonging to the first mentioned class, where the injury imports damages, if no evidence is given of any particnlar loss, the law will support the right invaded by awarding nominal damages. Sedgwick on Damages, supra, and cases in notes. The matters set out in the declaration clearly bring this case within the first class, showing a wrongful invasion of plaintiff’s right where the law will infer damage. The plaintiff was in lawful possession and use-of its car upon its horse railway in the street of the city of Chicago, as a common carrier of passengers, when the defendants willfully and wrongfully, as it is alleged, drove their wagon into and upon said car. This surely was a wrongful invasion of plaintiff’s right, for which the law awards nominal damages, at least. As to the mere forms of action, the statute has abrogated the distinction between trespass and case. But the distinction between an act done directly by force, constituting of itself a wrong by invading the rights of another, and one the result of negligence by the defendant or his servants, is not affected by such abrogation, because it is inherent in the nature of things, and of much importance in determining whether there is a liability growing out of a given state of facts. Where an injury is inflicted to a plaintiff’s right by a willful act of force, it constitutes a trespass. 1 Chit. Pl. 128; Percival v. Hickey, 18 Johns. 257; Wilson v. Smith, 10 Wend. 324; Cadwell v. Farrell, 28 Ill. 438. From this view it is clear that the special damage arising from the recovery by Cornell of a judgment against plaintiff for damages received by him as a passenger on plaintiff’s car at the time in question, is not a necessary element of the cause of action. The doctrine on the subject of such recovery over, is, as we understand it, correctly stated in Knox, Adm’r, v. The City of Sterling, 73 Ill. 214, where it was said that the theory of the liability of a property-owner over to the city is, that the former is the real author of the wrong, and by reason of the corporation not being itself the wrong-doer, but having, by its relative position to the public, been compelled to pay the damages sustained, it shall have a remedy .over against the real author of the injury. If, as between itself and the author of the nuisance, the corporation was a wrong-doer, it could have no remedy over. In Talmadge v. The Zanesville & M. Road Co. 11 Ohio, 197, a passenger on the plaintiff’s coach was injured, and sued and recovered against the plaintiff for such injury; and the latter sued the Zanesville & M. Road Co. for negligence in failing to keep their road in repair on which plaintiff’s coach was running at the time the passenger was injured. But the court held plaintiff was entitled to recover only for the injury to his coach, but not for that of the passenger. So, here the plaintiff may recover for the injury incurred by the invasion of its right, without regard to the special damages set out. Bor that reason the judgment of the court below will be reversed and the cause remanded. Reversed and remanded.