Godwin v. County Com'rs of St. Mary's County

• Decision Date: 06 January 1970
• Docket Number: No. 131,131
• Citation: Godwin v. County Com'rs of St. Mary's County, 260 A.2d 295, 256 Md. 326 (Md. 1970)
• Parties: Penelope Adora GODWIN v. COUNTY COMMISSIONERS OF ST. MARY'S COUNTY.
• Court: Maryland Supreme Court

Page 326

256 Md. 326

260 A.2d 295

Penelope Adora GODWIN v. COUNTY COMMISSIONERS OF ST. MARY'S COUNTY.

No. 131.

Court of Appeals of Maryland.

Jan. 6, 1970.

Neal P. Myerberg, Lexington Park (Briscoe & Kenney and Charles A. Norris, Leonardtown, on the brief), for appellant.

George Beall, Baltimore (Herbert F. Murray, M. King Hill, Jr., and Smith, Somerville & Case, Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SMITH and DIGGES, JJ.

BARNES, Judge.

The sole question presented by this appeal is whether or not by virtue of Code (1964 Replacement Volume), Art. 89B, §§ 220, 221, and 222 added to the Code by the Acts of 1947, Ch. 560 providing, inter alia, that the State Roads Commission should undertake, carry out and perform the construction, reconstruction and maintenance of county roads in eleven Maryland counties, including St. Mary's County, relieved the County Commissioners of St. Mary's County, appellee and defendant below, from tort liability for an alleged defect in a county road in St. Mary's County alleged to have been a proximate cause of injuries to Penelope Adora Godwin, the appellant and plaintiff below.

The appellant, on November 8, 1968, filed an action in the Circuit Court for St. Mary's County (Dorsey, J.) to recover damages for personal injuries she sustained in an automobile accident occurring on August 26, 1967. She was a passenger in the front seat of a 1965 Ford Mustang automobile owned and operated by John H. Browning which left the paved portion of St. Andrew's Church Road, a public road in St. Mary's County, and struck a tree. Both Mr. Browning and the County Commissioners of St. Mary's County were joined as parties defendant. It was alleged in the declaration that the County Commissioners negligently caused her injuries by (1) failing 'to keep and maintain St. Andrew's Church Road in good construction and repair', (2) 'failing to have St. Andrew's Church Road properly marked and designated and reasonably safe for the passage of persons using' it, (3) 'permitting St. Andrew's Church Road to become and remain in an unsafe and dangerous condition', (4) 'not properly and adequately laying out and constructing St. Andrew's Church Road', (5) 'failing to keep St. Andrew's Church Road properly and adequately marked and posted by warning signs * * *, slow speed warnings or other devices to designate the contour, curve, grade and permissible speed for the conditions prevailing', and (6) 'failing to make timely and seasonable recommendations to the State Roads Commission for the State of Maryland, for reconstruction of such road and the correction of such unsafe, defective and dangerous conditions', and this negligent conduct was alleged to be a proximate cause of the injuries sustained by the plaintiff. The damages claimed were $500,000.00.

On November 29, 1968, the defendant County Commissioners of St. Mary's County, pursuant to Maryland Rule 323 b filed a motion to dismiss the action on the ground of governmental immunity and for reasons for the motion, stated:

'By the terms of Article 89B, Sections 220 and 221, Maryland Code Annotated, the responsibility to keep or maintain St. Andrews Church Road in good construction or repair and to have the said St. Andrews Church Road properly marked, posted and designated and reasonably safe for vehicular traffic is imposed upon the Maryland State Roads Commission and not upon this defendant, and thus defendant therefore is not subject to suit in this action.'

After argument and the filing of trial memoranda on behalf of the respective parties, Judge Dorsey filed a carefully considered written opinion and sustained the motion to dismiss. An appeal was timely taken by the plaintiff to this Court.

To afford the proper setting for the decision in the present case, it is necessary to review briefly the theory and application of the doctrine of sovereign immunity in Maryland.

Sir William Blackstone gives the basis of the doctrine of sovereign immunity from suit in his Commentaries, as follows:

'Royal Dignity. In every monarchy, it is necessary to distinguish the prince from his subjects, not only by outward decoration, but by ascribing to him certain qualities, as inherent in his royal capacity, distinct from any other individual in the nation. He is presumed to possess certain attributes of a great and transcendent nature, by which the people are led to look upon him as a superior being.

'I. His Sovereignty. He is said to have imperial dignity, and is styled basileus or imperator. His realm is termed an empire, and his crown imperial. He owes no subjection to any other earthly potentate. No suit or action, even in civil matters can be brought against the king, because no court can have jurisdiction over him. Authority to try would be in vain, without authority to redress; the sentence of a court would be contemptible, where it could not enforce execution, and who shall command the king? His person is sacred, even though his measures be tyrannical and arbitrary, for no jurisdiction can try him in a criminal manner, much less condemn him to punishment.' (Browne's Blackstone's Commentaries, p. 77)

'II. His Absolute Perfection. The king can do nothing wrong. This means, that whatever is exceptionable in the conduct of public affairs, is not to be imputed to the king, nor is he answerable for it personally to the people. It also means, that the prerogative of the crown extends not to any injury; it is created for the good of the people, and therefore cannot be exerted to their prejudice.' (Id. at 78)

Professor Borchard in his article in 34 Yale L.J. 1, 129 entitled 'Government Liability in Tort,' stated:

'The reason for this long continued and growing injustice in Anglo-American law rests, of course, upon a medieval English theory that 'the King can do no wrong', which without sufficient understanding was introduced with the common law into this country and has survived mainly by reason of its antiquity * * *.' (Id. at 2)

Professor Prosser in his 'Law of Torts,' (third edition) Chapter 27, 'Immunities' pages 996, 997, and 1001 states:

'While these (immunities of governments) may or may not have had their roots in Roman law, the origin of the idea underlying them in the common law seems to have been the theory, allied with the divine right of kings, that 'the King can do no wrong,' together with the feeling that it was necessarily a contradiction of his sovereignty to allow him to be sued as of right in his own courts.' (Id. p. 996)

'Just how this feudal and monarchistic doctrine ever got itself translated into the law of the new and belligerently democratic republic in America is today a bit hard to understand. In 1821 Chief Justice Marshall gave no reasons when he declared that, without its consent, no suit could be commenced or prosecuted against the United States. Following this, it soon became established that the government could not be sued without its consent.' (Id. p. 997)

'The sovereign immunity likewise carried over from the English crown to the several American states. There was an abortive attempt on the part of Chief Justice Marshall to change the rule; but it led only to the Eleventh Amendment to the federal Constitution, protecting any state from suit by a private citizen in the federal courts. Thereafter the doctrine became firmly established, that there is no state liability in tort unless consent is given. The immunity is said to rest upon public policy; the absurdity of a wrong committed by an entire people; the idea that whatever the state does must be lawful, which has replaced the king who can do no wrong; the very dubious theory that an agent of the state is always outside of the scope of his authority and employment when he commits any wrongful act; reluctance to divert public funds to compensate for private injuries; and the inconvenience and embarrassment which would descend upon the government if it should be subject to such liability.'

(Id. p. 1001)

See also an interesting, comprehensive and helpful review of the Maryland law in regard to 'Municipal Responsibility in Tort in Maryland,' 3 Md.L.Rev. 159 (1938) by George L. Clarke.

As we have seen, there are legal scholars who are of the opinion that when the separation from the mother country and its monarchy occurred at the time of the War for American Independence, so that the new States had no personal sovereign, the reasons underlying the doctrine of sovereign immunity-based principally on monarchical concepts-were no longer applicable and the doctrine of sovereign immunity should never have been applied in the new States or to the United States under the Federal Constitution where, of course, no personal sovereign existed. It is well established, however, that the doctrine was applied in the new States and was held to be applicable to the United States as one of the dual 'sovereigns' in the federal system. The application of the doctrine in this country was most likely based more upon reasons of public policy than upon the concept of the new States or the United States being successors, as it were, of the former king. Indeed, it is clear in Maryland that public policy was a consideration for the application of this doctrine. In State v. B. & O. R.R. Co., 34 Md. 344, 374 (1871), Bartol, C. J. stated for the Court:

'This (sovereign) immunity belongs to the State by reason of her prerogative as a sovereign, and on grounds of public policy. Parties having claims or demands against her, must present them through another department of the Government-the Legislature-and cannot assert them by suit in the courts.' (Emphasis supplied.)

When one considers the financial and other problems which might arise if the doctrine of sovereign immunity were not applicable, it was probably wise that our predecessors did apply it in Maryland, with the possibility of legislative relief as suggested in State v. B. & O. R.R. Co., supra.

As...