Calvert County Com'rs v. Gibson

• Decision Date: 18 June 1872
• Citation: 36 Md. 229
• Parties: THE COUNTY COMMISSIONERS OF CALVERT COUNTY v. JOHN GIBSON.
• Court: Maryland Court of Appeals

36 Md. 229

THE COUNTY COMMISSIONERS OF CALVERT COUNTY v. JOHN GIBSON.

Court of Appeals of Maryland

June 18, 1872

APPEAL from the Circuit Court for Prince George's County.

This suit was instituted by the appellee in the Circuit Court for Calvert County, to recover damages from the appellants for injuries done to his wagon and carriage, while they were being used with due care and caution on certain of the public roads in said county. The plaintiff alleged that the defendants had negligently suffered said roads to be out of repair and unmended, so as to be impassable with safety, and that thereby his wagon and carriage were broken. At the instance of the plaintiff, the case was removed to the Circuit Court for Prince George's County, when upon leave of the Court he amended his declaration, laying the venue as of Calvert county. To this declaration the defendants demurred. The Court (MAGRUDER, J.,) overruled the demurrer. The defendants then pleaded "not guilty," and issue was joined thereon.

Exception: The plaintiff to maintain the issue on his part, gave evidence tending to show the bad condition of the public roads in Calvert county mentioned in the declaration, and the injuries done to his wagon and carriage while travelling over these roads.

The defendants then proved that at the time of the first breaking of the wagon of the plaintiff as alleged in the declaration there was another road leading through the village of Lower Marlborough to the steamboat landing, which was in good travelling condition, over which the plaintiff might have passed without injury to his wagon; that said road had been used by the public for upwards of forty years, and was known to the plaintiff as one of the thoroughfares through said village to the steamboat landing, and was only from three to four hundred yards further to said landing than the road used by the plaintiff.

The plaintiff thereupon offered the following prayer:

If the jury find from the evidence in the cause, that the public roads of Calvert county, mentioned in the declaration, were in bad condition, and not mended and repaired, and that in consequence of such condition of the roads the wagon and carriage of the plaintiff were broken whilst travelling on the said public roads, then the plaintiff is entitled to recover the amount of damage (if any) which the jury may find he sustained by the breaking of his carriage and wagon whilst so travelling on the said public roads; provided they shall further find from the evidence that the plaintiff used due care and caution at the time.

The defendants also offered the four following prayers:

1. That the plaintiff is not entitled to recover in this action for any damage which he could have avoided by the exercise of reasonable caution and care.

2. If the jury shall find from the evidence that the wagon and carriage of the plaintiff were damaged as alleged, while being driven over said public roads, the plaintiff is not entitled to recover, if the jury shall further find that said damage could have been avoided by an exercise of reasonable caution and care by the plaintiff.

3. If the jury shall find from the evidence that the wagon and carriage of the plaintiff were damaged as alleged, while being driven by the plaintiff over the public roads of Calvert county, mentioned in the declaration, and that said damage was caused by a want of ordinary care and caution on the part of the plaintiff, then he is not entitled to recover in this action, although the jury may find that the said public roads, at the time of said damage, were out of repair.

4. If the jury find from the evidence in the cause, that the alleged bad road, on which the plaintiff's wagon was broken, could have been avoided by using another road leading to said wharf, which was in good condition, and but a short distance further, and had been used by the public for upwards of twenty years, then the plaintiff did not use due care and diligence, and is not entitled to recover.

The Court granted the prayer of the plaintiff and rejected the prayers of the defendants, and the verdict and judgment being for the former, the latter appealed.

The cause was submitted on briefs to BARTOL, C.J., BOWIE, BRENT GRASON, ALVEY and ROBINSON, J.

Charles S. Parran and Samuel H. Berry, for the appellants.

The appellants, by their demurrer to plaintiff's narr., raised the question as to their legal responsibility for damages in actions of this kind. They contended that the Road Supervisors of Calvert county, and not the County Commissioners of Calvert county, were, under the Act of 1868, ch. 299, responsible for such damages.

The Act of 1868, ch. 299, was, by its 10th section, made applicable to Calvert county. By its 3d section, the entire labor necessary for repairing the public roads of Calvert county was placed under the control and direction of the Road Supervisors. Thus the most essential means for keeping these roads in repair were taken from the County Commissioners and given to the Road Supervisors, who are, in consequence thereof, and according to the reasons given in the case of The County Commissioners of Anne Arundel county vs. Duckett, 20 Md., 468, responsible for damages caused by the public roads not being kept in good repair.

The Act of 1868, ch. 299, sec. 8, prescribes that the bond of a Supervisor "" may be put in suit for the benefit of any person suffering by the neglect of said Supervisor in keeping the roads in his district in proper order." This Act provides the remedy in this case, and being the only remedy given by statute law, it should have been used. The word "may," in this section, means "must" or "shall," and the remedy proposed is therefore to be regarded as mandatory. King vs. Barlow, 2 Salk., 609; Newburgh Turnpike Co. vs. Miller, 5 Johns. Ch., 113; Malcom vs. Rogers, 5 Cowen, 193; Minor, et al. vs. The Mechanics' Bank of Alexandria, 1 Peters' U. S., 64; Mason vs. Fearson, 9 Howard U. S., 248; 1 Kent's Comm., (11 th edition,) 509, note b.

The amended narr. is defective, because the venue is laid as of " Calvert " county, when the case was pending in the Circuit Court for Prince George's county at the time of the filing of the narr.

The plaintiff's prayer should have been rejected, because it did not require him to prove that he could not have avoided the injury by the exercise of reasonable caution and care. Owings vs. Jones, 9 Md., 118.

The defendants' prayers should have been granted. Mayor and City Council of Baltimore vs. Marriott, 9 Md., 160; Whiteford vs. Burckmyer and Adams, 1 Gill, 127; Day and Gorsuch vs. Day, 4 Md., 262; Atwell vs. Miller and Mayhew, 6 Md., 10; Birney vs. New York and Washington Telegraph Co., 18 Md., 341.

Henry Williams, Rich'd B. B. Chew and James T. Briscoe, for the appellee.

The liability of the appellants for the damages claimed in the declaration of the appellee is conclusively established by the decision of this Court in The County Commissioners of Anne Arundel county vs. Duckett, 20 Md., 469, and the cases cited in support of the opinion in that case. The declaration here is precisely like the declaration in that case, and avers every fact necessary to entitle the plaintiff to recover.

The construction of the Act of 1868, chap. 299, does not arise on the demurrer, and is not raised by any plea or ruling of the Circuit Court. The demurrer concedes that the appellants did negligently suffer the public roads in Calvert county, mentioned in the plaintiff's declaration, to be out of repair and unmended, so as to be impassable with safety, whereby the plaintiff, in travelling over said roads with his wagon and horses, and carriage and horses, and using due care, sustained the injury complained of. Non constat, that the County Commissioners of Calvert county had appointed any supervisors, as required by law, or had required them to give bond, or had offered any bond as required by section 8 of said Act, or that they made any levy for the repairs of the public roads in the said county, for the years 1868 and 1869, as required by law.

The Act of 1868, ch. 299, does not in terms, or by reasonable implication, change or diminish the power and authority of the County Commissioners of Calvert county over the public roads and bridges of said county, as defined in the Constitution of 1867, Art. 7, sec. 1, and the several provisions of law relating thereto.

The object of the Act of 1868 is not to change the liability of the county commissioners, nor to take away the right of action against them, but to provide a cumulative remedy for the wrongs complained of in the plaintiff's declaration.

The road supervisors are liable to indictment for non-repair of the public roads, and being liable to indictment, an action on the case can be maintained against them by a party sustaining any peculiar damage. County Commissioners of Anne Arundel county vs. Duckett, 20 Md., 481.

The provision of the Act of 1868, requiring them to give bond for the faithful performance of the duties required by that Act, and the right of action thereon for their neglect to keep the roads in repair, gives...