Anne Arundel County Com'rs v. Duvall

• Decision Date: 01 July 1880
• Parties: THE COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY v. HENRY DUVALL.
• Court: Maryland Court of Appeals

54 Md. 350

THE COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY v. HENRY DUVALL.

Court of Appeals of Maryland

July 1, 1880

APPEAL from the Circuit Court for Anne Arundel County.

This action was brought against the appellants in the Circuit Court for Anne Arundel County, by the appellee, to recover in damages for injuries sustained by him while driving on a public road, by the falling of a tree, through the carelessness of laborers employed by the Road Supervisor in repairing the road. The case was removed to Baltimore County where it was tried.

Exception.--The plaintiff offered three prayers which the Court, (GRASON and YELLOTT, J.,) granted. The defendants offered ten prayers, the fifth, sixth, seventh and ninth of which the Court granted; the others, save the first which was withdrawn, it rejected. The third and tenth prayers of the defendants which alone were considered by this Court were as follows:

3. If the jury find from the evidence, that Thomas C. Boone, at the time of the injury complained of by the plaintiff, was the Supervisor of public roads of the road district, embracing the road spoken of by the witnesses, and that the repairs on said road were being done by his direction as Supervisor, the defendants are not responsible in this action, and the verdict must be for them.

10. If the jury find from the evidence that Jefferson Phipps, and the other persons employed in repairing the roads were employed by T. C. Boone, the Supervisor, and not by the defendants, then the plaintiff is not entitled to recover in this action.

The defendants excepted, and the verdict and judgment being for the plaintiff, they prosecuted this appeal.

The cause was argued before BARTOL, C.J., BOWIE, BRENT, MILLER and ALVEY, J.

S. Thomas McCullough and William H. Tuck, for the appellants.

The third prayer of the appellants asserts the legal proposition that Supervisors, and not the County Commissioners, are responsible for accidents resulting from negligence in the performance of their duties as Supervisors.

The cases heretofore decided in this Court for injuries received on public roads, were cases of omission to keep the roads in repair. The distinction is believed to be plain and important on principle, and specially applicable where the law prescribes the duties of Supervisors, and charges them with their performance.

The Code, Art. 28, sec. 1, gives to the Commissioners charge and control over the public property, and over county roads and bridges. But the Act of 1876, ch. 354, being a Public Local law for Anne Arundel County, must prevail if it and the Code conflict. The Act of 1876, in force when this accident happened, would have effect in modifying the application of the decisions heretofore made, even if this were a case of omission of duty by the Commissioners. Duckett's Case, 20 Md., 468; Gibson's Case, 36 Md., 229.

The law prior to these two cases, did not impose on the Supervisors the same duties that are imposed by the Act of 1876. By this Act, it is made the duty of this officer to cause all public roads to be kept cleared, smooth, and in good repair; also culverts, bridges, &c. (Sec. 4.)

The same work was performed before, but under the authority of the Commissioners, and not imposed as a duty so fully by Act of Assembly mandatory to the Supervisor. Hence he is not only a public officer, but one whose duties are prescribed by law, amenable not only to the Commissioners, who have the power of appointment and removal, but directly to the law itself, under sanctions operating immediately upon the officer himself. Wood on Master and Servant, 916; Hardy vs. Kean, 52 N. H., 370; Deford's Case, 30 Md., 179.

But there is a distinction between acts of omission and negligence in performing the duty. In the latter the liability rests on persons doing the act and not on the Commissioners. 52 N. H., 370.

The tenth prayer affirms that the persons who were at work on the road, being employés of Boone, were his agents and not agents of the defendants, and hence, no responsibility attached to them for the alleged negligence. This is based on the hypothesis that Boone is an independent public officer, for whose acts the defendants are not liable.

Richard J. Gittings and Frank H. Stockett, for the appellee.

Under the Act of 1876, ch. 354, the whole subject-matter of the making and keeping in repair the roads of Anne Arundel County, is under the government and control of the County Commissioners. They appoint, and at pleasure remove the Supervisors. (Sections 2 and 3.) The County Commissioners regulate the prices to be paid by the Supervisors for the hire of teams and laborers. (Section 6.) They determine the general road-tax, and have power under certain provisions to levy additional special taxes upon the several road districts. They put in motion the penal provisions provided for the punishment of Supervisors who may neglect their duty. And in addition to the provisions of this local law, they have the general powers of County Commissioners under the Code.

The liability of the County Commissioners in a case like this is established by the case of County Commissioners of Anne Arundel County vs. Duckett, 20 Md., 468; and repeated decisions since.

By the laws of the State, the public highways are placed under the care and management of the Commissioners of the several Counties. Walter vs. County Commissioners of Wicomico, 35 Md., 394. It is their duty to keep the highway in good order and condition for the use of the public, and to adopt the necessary means to that end. Tyson's Case, 28 Md., 510.

Road Supervisors being the authorized instrumentality for the performance of the duty, "it is the duty of the Commissioners to appoint them, and see that they perform their trust." County Commissioners of Baltimore Co. vs. Baker, 44 Md., 9.

It is impossible to draw any substantial distinction between the powers and authority and consequent liability, of the County Commissioners of Anne Arundel under the Act of 1876, in connection with the general law, and their powers and responsibilities under the law as it existed at the time of Duckett's Case. County Commissioners of Calvert County vs. Gibson, 36 Md., 235 and 236; vide, Sherman & Redfield on Negligence, secs. 374, 376; Whart. Law of Negligence, sec. 956; Child vs. City of Boston, 4 Allen, 52; Meares vs. Coms. of Wilmington, 9 Iredell, 81-86; Memphis vs. Lasser, 9 Hump., 757; Thayer vs. Boston, 19 Pick., 516; Flynn vs. Canton Co., 40 Md., 319; Altvater vs. Mayor, &c. of Baltimore, 31 Md., 462; Brooks vs. Somerville, 106 Mass., 274.

BRENT J., delivered the opinion of the Court.

On the 26th of August, 1878, the appellee, in passing along one of the public roads in Anne Arundel County, at a point where it was being repaired under the direction of the Road Supervisor, was struck and injured by a tree rolling over from a bank, outside the road and elevated about twelve feet above the level of the road-bed.

The tree was cut down by two of the hands engaged in making the repairs, for the purpose of being used to fill up a wash in the road. A high wind was prevailing at the time, and, as the tree was felled, it was whirled over for several yards in a direction after the appellee, who had passed by the point where it stood, and the "butt end," striking upon his rockaway and crushing it, inflicted upon him considerable personal injury.

The proof is quite sufficient to establish a want of proper care on the part of those engaged in the work. The accident seems to have resulted from their negligence, and not in any way to have been attributable to the fault, or contributory negligence of the appellee.

The third and tenth prayers of the appellants, which were rejected by the Circuit Court, raise the question of the liability of the County Commissioners of Anne Arundel County, upon the assumption that the act complained of was negligent, and upon that question will depend the reversal or affirmance of the judgment which was obtained by the appellee.

The cases of Duckett, 20 Md., 468 Gibson, 36 Md., 229, and Baker, 44 Md., 1, are relied upon, on the part of the appellee, as conclusively settling this case. In all those cases the injuries, for which the County Commissioners were held liable, resulted directly from the bad condition of the public roads or bridges. The County Commissioners are specially charged by law with the duty of keeping these in good repair and safe for the travel of the public. Tyson's Case, 28 Md., 510; Walter's Case, 35 Md., 394, and cases above cited. If they fail to do so, and injury results, they are liable in an action at law, not by virtue of any liability at common law, but because they are made so by ...