Howard County Com'rs v. Leaf

• Decision Date: 25 October 1939
• Docket Number: 8.
• Citation: 8 A.2d 756,177 Md. 82
• Parties: COUNTY COM'RS OF HOWARD COUNTY v. LEAF.
• Court: Maryland Court of Appeals

8 A.2d 756

177 Md. 82

COUNTY COM'RS OF HOWARD COUNTY v. LEAF.

No. 8.

Court of Appeals of Maryland

October 25, 1939

Appeal from Circuit Court, Frederick County; Arthur D. Willard Judge.

Suit by Lars T. Leaf against the County Commissioners of Howard County for injuries sustained in an automobile accident which was allegedly caused by defendants' negligently permitting one of roads which was under their charge to be out of repair. From judgment for plaintiff, the defendants appeal.

Affirmed.

Jerome A. Loughran, of Ellicott City, and W. Clinton McSherry, of Frederick, for appellants.

L Wethered Barroll, of Baltimore (Jacob Rohrback, of Frederick and Julius P. Robinson, of Baltimore, on the brief), for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

JOHNSON, Judge.

This is an appeal from a judgment entered by the Circuit Court for Frederick County upon the verdict of a jury in favor of Lars T. Leaf against the Commissioners of Howard County. The suit was first instituted in Howard County, and after a demurrer to the plaintiff's declaration had been overruled the case was removed to Frederick County for trial.

The first question for consideration upon the record relates to the correctness of the Court's action in overruling appellants' demurrer to the declaration.

During the trial, appellants reserved exceptions to several rulings of the trial Court upon the admissibility of evidence and also excepted to the Court's rulings upon the prayers. However, the exceptions to the adverse evidence rulings have neither been argued in appellants' brief nor referred to in oral argument before this Court, and will under Section 4 of Rule 39 of this Court be treated as abandoned. See also Wilkerson v. State, 171 Md. 287, 289, 188 A. 813. Therefore, the only question we are called upon to consider in addition to the ruling upon the demurrer to the declaration, relates to the correctness of the trial Court's action in its rulings upon the prayers. These questions will be considered in the order mentioned.

It is alleged in the declaration that appellants on May 27, 1936, in disregard of their duties and obligations imposed by law, negligently and carelessy allowed and permitted one of their roads which was under their charge, leading from Annapolis Junction to Savage, to be out of repair and to be negligently maintained and remain unmended in an unsafe and dangerous condition, in that there was a hold in said road on the north side thereof of a dangerous depth, width, and breadth, and as a result of appellants' negligence, the plaintiff on the date mentioned, while using due care and riding in an automobile owned, operated and controlled by one Elmer Hazelton proceeding on said road past the property of Lloyd W. King, as a passenger in said motor vehicle, which was so operated that one of its front wheels dropped within the hole and the machinery of the vehicle was so damaged thereby that it ran against a stationary pole along the side of the road; that the plaintiff was thereby severely, seriously and permanently injured, suffered excruciating pain and has been incapacitated in earning his livelihood and also incurred doctors' and hospital bills and has been otherwise seriously injured; that all of said wrongs and injuries complained of were the result of the defendants' negligence and not the consequence of any negligence on the part of the plaintiff contributing thereto.

Appellants' argument in support of their demurrer to that declaration rests upon the contention that by the enactment of Chapter 425 of the Acts of 1933, the Legislature relieved the Commissioners of Harford County from the maintenance, repair, supervision and control of the public roads within its borders; that since they are relieved by this Act from the control, maintenance, repair and supervision of the roads within the county, and it is implicit in the declaration that the road upon which the plaintiff was injured is a public road, they are likewise relieved from all liability for accidents resulting from their negligence in failing to repair and maintain such roads in a reasonably safe condition for public travel. If this contention is sustainable, the plaintiff and all others in a similar situation must bear the loss, as no relief may be had against the State Roads Commission, a Department of the State Government. It is unnecessary to discuss the freedom of the Commission of liability for tort, as this is conceded. The Court accepts and must enforce the law, but before the liability of the county for an injury negligently inflicted upon a person in the lawful and careful use of a public highway of the county may cease, a clear legislative expression of such an intention should be found. Appellants rely upon Art. 56 of the Code of Public General Laws, Title Licenses, sub-title, Part VII, Gasoline Tax, Sec. 212A et seq., and the disposition of what is called the 'One and One-Half Cent Lateral, County and Municipal Road Gasoline Tax Fund', Art. 89B of Code, Secs. 7A, 7B, 7C, 7D, 7E, 7F and Flack's Code, Vol. 3, pp. 767 and 1158.

The salient provisions of the statutory law may be thus stated. After certain deductions, a designated proportion of the proceeds of the tax are credited to the account State Roads Commission to be paid out of the Treasury of State upon the warrant of the Comptroller and shall be allocated by the State Roads Commission to the counties of the State in the proportion which the public road mileage of the several counties bears to the entire public road mileage in the counties of the State, for the following uses and purposes:

(a) For the construction of Lateral Roads as a part of the State Roads system; (includes bridges) after recommendations from County Commissioners.

(b) For the construction, reconstruction and maintenance of county roads or streets of incorporated towns, municipalities or special taxing areas located in the respective counties of the State, and in connection therewith to build and maintain any bridges on such roads or streets, or to maintain those existing.

(c) For debt service or to meet interest, sinking fund or maturity requirements with respect to bonds or other evidences of debt issued by the several counties, municipalities of special taxing areas for road or street improvements upon the recommendation of the County Commissioners. Sec. 7A.

Before the time of the annual tax levy and upon the second Monday of every year, and thereafter from time to time, the State Roads Commission shall seek the recommendations of the County Commissioners, or other duly constituted public authorities of the several counties having jurisdiction over roads and streets with reference to:

(1) What part of the funds allocated shall be expended for the construction of lateral roads as part of the State Road System.

(2) What part shall be expended for the construction, reconstruction and maintenance of county roads or bridges or municipal streets.

(3) What part shall be expended for debt service.

(4) What specific roads shall be constructed, reconstructed or maintained under the provisions of this section, and of what material and by what method.

(5) The manner and amount in which funds allocated shall be divided and expended.

(6) The base rate of pay for unskilled labor in connection with such public work.

The County Commissioners or other constituted authority shall have the right to submit at any time and from time to time recommendations with respect to these provisions.

Should the State Roads Commission be unable to concur in the recommendations of the County Commissioners or other constituted local authority, it shall notify the recommending authority in detail as to the reasons why such authority is withheld, and the recommending authority shall thereupon, if requested, be entitled to a formal hearing before final action by the State Roads Commission. Sec. 7A.

All Boards of County Commissioners are relieved from the requirement of existing law to levy a minimum amount or a minimum rate for road maintenance purposes and the portion of all public local laws making such requirements is suspended. Sec. 7F.

By Sections 7B, 7C, 7E, various powers and duties are conferred on the State Roads Commission in respect of the performance of these powers and duties during the temporary affectiveness of the Sections cited. Acts of 1935, Ch. 465, Sec. 4; Acts of 1937, Ch. 341, p. 672.

Under Art. 89B, Sec. 29, the State Roads Commission may maintain in good condition and keep in proper order and repair, 'so far as funds for such purposes are available, all State roads and bridges heretofore or hereafter constructed or improved by it under the provisions of this Article or which now or at any time may be placed or come under its control; and to such end the said State Roads Commission shall have power and authority to adopt such method or methods for the systematic repair and maintenance of such roads as it may from time to time deem proper and advisable.' And by Sec. 5 of Art. 89B provisions are made for the permanent acquisition of county roads, in whole or in part, by the State Roads Commission, and their later maintenance by that body.

These and other provisions make it clear that the sections relied upon by the appellants are of a temporary nature, and for their continuance further legislation is necessary. In addition, the expenditures by the State Roads Commission are of a special fund, and the application of the funds is ultimately for the decision of the Commission; and there is no requirement that such expenditure of such special fund shall be exclusively to one or more of the highway purposes of a county nor cover the whole filed of...