Chesapeake & Ohio Canal Co. v. Allegany County Com'rs

• Decision Date: 21 July 1881
• Citation: 57 Md. 201
• Parties: THE CHESAPEAKE AND OHIO CANAL COMPANY v. COUNTY COMMISSIONERS OF ALLEGANY COUNTY.
• Court: Maryland Court of Appeals

57 Md. 201

THE CHESAPEAKE AND OHIO CANAL COMPANY v. COUNTY COMMISSIONERS OF ALLEGANY COUNTY.

Court of Appeals of Maryland

July 21, 1881

APPEAL from the Circuit Court of Allegany County.

The case is stated in the opinion of the Court.

Exception.--At the trial, the plaintiff, to sustain the issues on its part, offered evidence, the substance of which is stated in the Court's opinion.

And proved by H. W. Hoffman, attorney at law, that he assisted the regular attorney of the Commissioners, Mr. Cox, at the last trial of said case; that the Commissioners paid him $100 for his services, which was reasonable and proper compensation.

And proved by Mr. Cox, the then attorney of the Board, that whilst said suit was pending, and after it came back from the Court of Appeals, he verbally notified Mr. Gorman, president of the Canal Company, of the same, and requested him to defend same; and that he spoke to Mr. Price, the attorney of the company, about the said suit, and Price requested him to put his statement of the pendency and nature of said suit, in writing, which he did; that Mr. Hamill and Mr. Humbird, two of the directors of the Canal Company, were present at the last trial of the case, and advised with the counsel trying the same; that said last trial took place in Oakland, the place of residence of Hamill; and that Humbird had been summoned there as a witness for defence; that the counsel advised with Hamill as to selection of a jury, and general conduct of the case; that Price, the Canal Company's attorney, appeared in said case, on behalf of defence, and took part in the trial. The plaintiff also proved by Mr Price, that he was the standing counsel of the Canal Company for Allegany and Garrett Counties, in May, 1879; that he appeared in the last trial of said case, without any special order from the Canal Company, but for the protection of its interests: that it was his general duty to attend to litigation in which it was interested, in said counties; that he rendered a bill for his services in said trial, which the Canal Company paid.

The defendant then offered evidence tending to prove that the bridge, at the time of the accident to Eyler, was in good and safe condition.

The plaintiff then offered three prayers:

1. If the jury find that a public highway, in Allegany County, was cut and severed by the defendant, in the building of its canal, and that defendant built a bridge to unite said severed highway, and that the defendant subsequently allowed said bridge to fall into bad repair, and become unsafe for travel; and if they further find that Josiah Eyler, whilst crossing said bridge on horseback, in December, 1876, and using due care on his part, was injured by reason of the unsafe condition of said bridge, and that said Eyler sued the County Commissioners on account of said injury, and recovered judgment, and that said judgment has been paid by the now plaintiff, then the plaintiff is entitled to recover.

2. If the jury find that the now plaintiff was sued by Josiah Eyler, as set out in the plaintiff's first prayer, and if they further find that S. A. Cox, as the attorney for the now plaintiff, notified Mr. Gorman, the president of the now defendant, of the pendency of said suit, and requested him to defend the same, and that at the trial of said case, two of defendant's directors were present and assisted in the conduct of the defence; and if they further find that Wm. M Price was the standing counsel of the defendant, and appeared as counsel in said case in behalf of the Canal Company, and participated in the defence thereof with the attorneys of the then defendant, and rendered a bill to the now defendant for such services, which was paid by it, then the jury may find that the now defendant had notice of said suit, and participated in the defence thereof, and if they do so find then the defendant is concluded by the verdict, and judgment in said case upon the question of the condition of said bridge, and upon the question of the fact, nature and extent of the injury to said Eyler, and upon the question of whether Eyler was exercising due care on his part, and upon the question of the amount of damages to Eyler by reason of said injuries.

3. If the jury find from the evidence, that Josiah Eyler recovered the judgment set out in the record offered in evidence, for injuries received by him while traveling upon the bridge spoken of by the witnesses, and that the defendant herein had notice of said suit and of Eyler's claim for damages, and the cause and nature of such suit and claim, and that the defendant employed counsel in that suit to assist the County Commissioners in its defence, and said counsel and two of the defendant's directors were present at said trial and assisted in defending said suit, then the jury is instructed that if they find for the plaintiff the true measure of damages is the amount of the judgment and costs recovered by Eyler set out in the said record, with interest on the principal of such judgment to the present time, and such reasonable costs and counsel fees as they find from the evidence the plaintiff may have been obliged to lay out and expend in the defence of said suit.

And the defendant offered four prayers:

1. That the plaintiff is not entitled to recover the costs recovered in the former judgment against the County Commissioners, unless they shall also find that the Chesapeake and Ohio Canal Company had proper legal notice of the bringing of said suit, and could have been present and taken part in the defence at its first trial, or that said suit was defended at the request of, or for the benefit of the now defendant.

2. That the plaintiff in this cause, is not entitled to recover in this action, unless the jury shall find that the injury sustained by Eyler, (if they shall find that such injury was sustained,) was sustained without the negligence of the plaintiff, and that the plaintiff was not itself a wrong-doer.

3. That if the jury should find that the defendant had no notice of the pendency of said suit of Eyler against the now plaintiff, before the trial thereof, then the judgment recovered in case of Eyler against the now plaintiff, is not the true measure of damages in this case.

4. That there is not sufficient evidence in this cause to bind the defendant with a proper and legal notice of the pendency of the suit of Eyler against this now plaintiff.

The Court (PEARRE, J.) granted all of the plaintiff's prayers, and granted defendant's third prayer, and rejected its first, second and fourth prayers. The defendant excepted.

Jury sworn on the 5th February, 1881, and on the 7th February, 1881, returned their verdict in favor of the plaintiff for $3,397.64, according to the following statement handed to the clerk by their foreman:

Judgment ...........	$2,418 00
Interest ..............	251 47
	---------
	$2,669 47
Plaintiff's costs .....	379 58
	---------
	$3,049 05
Defendant's costs .....	248 59
	---------
	$3,297 64
Counsel fees ..........	100 00
	---------
	$3,397 64
	---------
	---------

Memorandum:--Judgment was rendered on verdict for the plaintiff, February 7th, 1881, for $3,397.64, with interest from date of judgment, and costs. The defendant thereupon appealed.

The cause was argued before BARTOL, C.J., GRASON, MILLER, ALVEY, ROBINSON, IRVING, RITCHIE and MAGRUDER, J.

J. N. Willison, W. M. Price and C.J. M. Gwinn, Attorney-General, for the appellant.

It was the primary and unqualified duty of the County Commissioners to keep the bridge in question in this case in repair. 49 Md., 272. It was by the neglect of this duty primarily devolving upon the County Commissioners, that Eyler was injured. It was for the injury, thus inflicted, that he recovered judgment against the appellees in this case. Upon what theory is it, that the County Commissioners, who have thus been mulcted for their own neglect of a statutory duty, primarily devolved by law upon themselves, can recover back from the Canal Company the amount which Eyler, the injured person, recovered from them? The condition of the bridge for the period of time, which must have elapsed to bring about its state, fixed the responsibility of the County Commissioners. Winn vs. Lowell, Mass., 179; Albrittin vs. Huntsville, 60 Ala., 494-5.

If the obligation of the appellees to the public was primary and unqualified, certainly no person or corporation not in the employment of the appellees, is liable to them for their neglect to fulfil such primary obligation, unless such liability over is cast upon such person or corporation, by some rule of the common law, or by some statutory requirement, or by some general or particular contract. If the obligation of the appellees to the public was primary and unqualified--if they had the exclusive power of prescribing the repairs, which would make the particular bridge safe and convenient for the passage of persons and property, and of directing the making of such repairs--and neglected this duty--can they recover back from the appellant the amount of a judgment recovered against them because of their neglect of the primary and unqualified duty devolved upon them by law?

It would seem that the common law obligation to keep the particular bridge in repair, devolved upon the Canal Company 49 Md., 272, had been abrogated by the Acts of 1853, ch. 239, sec. 11, and 1856, ch. 308, sec. 1, as codified in 1 Code, Article 28, secs. 1 and 11, amended by the Acts of 1865, ch. 85, and 1874, ch. 411. For certainly if a duty which one person or corporation is, by the common law or by statute, directed to perform, is by a subsequent statute,...