Baltimore City Pass. Ry. Co. v. Tanner

• Decision Date: 09 January 1900
• Parties: BALTIMORE CITY PASS. RY. CO. v. TANNER.
• Court: Maryland Court of Appeals

45 A. 188

90 Md. 315

BALTIMORE CITY PASS. RY. CO. v. TANNER.

Court of Appeals of Maryland

January 9, 1900

Appeal from superior court of Baltimore city; Albert Ritchie, Judge.

Action by Ernest Tanner against the Baltimore City Passenger Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before MCSHERRY, C.J., and PEARCE, PAGE, BOYD, FOWLER BRISCOE, and SCHMUCKER, JJ.

A. W Machen and Wm. S. Bryan, Jr., for appellant. Thos. G. Hayes and H. J. Broening, for appellee.

BRISCOE J.

This suit is brought by the appellee against the appellant, a corporation owning and operating a street railway in the city of Baltimore, to recover for personal injuries sustained by the appellee. The declaration states "that the plaintiff was in a Dayton wagon, being driven northwardly on Marshall street or avenue, which is one of the public streets of Baltimore; and while the plaintiff was in said wagon, being driven as aforesaid, the defendant, its agents, servants, and employés, negligently ran at great speed one of the defendant's cars into the rear of said wagon, and threw the plaintiff out of said wagon onto the surface of said street or avenue; and the plaintiff, in falling from said wagon to said street or avenue, fell on his head and side and by said fall the plaintiff had his collar bone broken his head and body bruised, causing him great pain in body and mind; and his brain and nervous system, by the concussion caused by said fall, were materially and permanently impaired and injured, so that the plaintiff has become deaf, and unable to sleep soundly, and constantly in a nervous and excitable condition," etc. To this declaration, the defendant pleaded: (1) "Not guilty;" (2) that the alleged cause of action did not accrue within one year before this suit; and (3) that the defendant did not commit the supposed grievances, or any of them, at any time within one year next before the commencement of this action. At the trial, issue was joined on the first plea, and a demurrer entered to the other two.

The first question, then, for consideration, arises upon the ruling of the court in sustaining the demurrers; and that is whether this action is within that part of section 1, art 57, of the Code of Public General Laws which provides that "all actions of assault, battery, and wounding or any of them shall be commenced within one year from the time the cause of action accrued," or whether it is an action on the case, and within the three-year period of limitation mentioned in the statute. The rule is stated to be that when the injury is done directly by the person sued the action should be trespass, and when it is consequential, as when done by a servant, and the master is sued on account of his liability for the acts of his servant, case is the proper remedy. Mr. Chitty, in his work on Pleading (volume 1, p. 147), says: "If the injury arises from the want of care or negligence of the servant, case is the remedy; but if it occurred as the necessary, probable, or natural consequence of the act ordered by the master, then the act is the master's, and he should be sued in trespass, if the act were forcible and immediate." The leading cases to which we have been referred also sustain this view. In Sharrod v. Railway Co., 4 Exch. 584, Baron Parke thus states the rule: "Whenever the injury done to the plaintiff results from the immediate force of the defendant himself, whether intentionally or not, the plaintiff may bring an action of trespass. On the other hand, if the act be that if the servant, and be negligent, not willful, case is the only remedy against the master, unless the act was done by his command." The following cases sustain this position: Claflin v. Wilcox, 18 Vt. 605; McAllister v. Hammond, 6 Cow. 342; Broughton v. Whallon, 8 Wend. 474; McManus v. Crickett, 1 East, 106; Morley v. Gaisford, 2 H. Bl. 441; Ogle v. Barnes, 8 Term R. 190; Huggett v. Montgomery, 2 Bos. & P. (N. R.) 446; Scott v. Shepherd, 1 Smith, Lead. Cas. 797; 1 Poe, Pl. & Prac. 161. It is quite certain, we think, that an action for a personal injury resulting from negligence or the want of due care, as the case at bar, is not of the same class as actions for "assault, battery, and wounding," and not, therefore, within that part of the statute prescribing one year as the period of limitation. The supreme court of Minnesota, in passing upon the same question in the recent case of Ott v. Railway Co., 72 N.W. 833, says, in effect: It may be true that every personal injury committed through negligence, but unintentionally, is a battery, within the very broad common-law definition. But it does not follow that the word "battery" is to be construed so as to include personal injury actions, or that it is to be defined according to the common law. Such a construction has never been suggested, to our knowledge, prior to this time. But the action for a battery, within the two-years limitation mentioned in the act, has admittedly been the action founded upon an intentionally administered injury to the person,--such an injury as could be made the basis of a criminal prosecution, and not that which resulted from the want of due care. Personal injury cases are not of the same genus or class as the actions for a battery, as that action is provided for in section 8, and never have been. In no respect are they within the rule of ejusdem generis, as...