Jones v. Scofield Bros., Civil Action No. 3381.

• Decision Date: 15 September 1947
• Docket Number: Civil Action No. 3381.
• Citation: 73 F. Supp. 395
• Parties: JONES v. SCOFIELD BROS., Inc. (REINDOLLAR et al., Third-Party Defendants).
• Court: U.S. District Court — District of Maryland

73 F. Supp. 395

JONES v. SCOFIELD BROS., Inc. (REINDOLLAR et al., Third-Party Defendants).

Civil Action No. 3381.

District Court, D. Maryland

September 15, 1947.

Paul Due, of Due, Nickerson & Whitford, all of Baltimore, Md., for defendant & third-party plaintiff.

Hall Hammond, Atty. Gen. of Md., and Robert E. Clapp, Jr., Asst. Atty. Gen., for State Roads Commission.

Wm. A. Grimes, of Ober, Williams, Grimes & Stinson, all of Baltimore, Md., for third-party defendant.

Leonard Weinberg, of Weinberg & Green, all of Baltimore, Md., for plaintiff.

CHESNUT, District Judge.

The plaintiff has sued the original defendant, Scofield Brothers, Inc., for personal injuries allegedly resulting from negligence in the operation of an automobile truck by an employe of the defendant, upon a ferry boat operated by the State Roads Commission of Maryland, under express legislative authority (c. 856 of the Acts of 1941, codified as §§ 140A to 140M of Art. 89B Ann.Code of Maryland, Supp.1943) from Sandy Point across the Chesapeake Bay. By an amended third-party complaint the original defendant, Scofield Brothers, Inc., has impleaded the State Roads Commission alleging that the accident was due wholly or partially to negligence of the agents of the Commission in operating the ferry boat. The State Roads Commission has moved to dismiss this third-party complaint against it on the ground that it is an essential governmental agency of the State of Maryland, and is therefore not liable to suit.

After considering arguments by the parties on the motion, I have decided that it must be granted.

It is not contended that there is presently, or was at the time of the accident, any express permission granted by the Legislature of Maryland to sue its State Roads Commission. And it is not contended that any appropriation has been made by the Legislature for the payment of tort suits against the Commission.

In State v. Rich, 126 Md. 643, 95 A. 956, 957, the Court of Appeals of Maryland directly held that the State Roads Commission could not effectively be sued for personal injuries occasioned by its alleged negligence occurring in the execution of road work committed to its control, because the Commission was a governmental agency charged with the exercise of an important public function. It was said—

"In view of the relation which the Commission thus bears to the state, it is entitled, in a case like the present, to the benefit of the State's immunity from suit, unless it has been made liable to be sued for negligence by legislative enactment. The theory upon which the State is held to be exempt from such a liability is that the prosecution of suits against it, without its consent, would be incompatible with its sovereignty, and that any claim as to which it ought justly to assume responsibility would be satisfied voluntarily through the action of the Legislature. State v. Baltimore & Ohio R. Co., 34 Md. 344, 374; Poe's Pleading, (4th Ed.) § 512."

The same doctrine of sovereign immunity has been applied to other State agencies; in the educational field as in Williams v. Fitzhugh, 147 Md. 384, 128 A. 137 (alleged breach of contract of employment as a teacher) and in University of Maryland v. Maas, 173 Md. 554, 557, 197 A. 123, (a case for breach of a building contract). In Lohr v. Upper Potomac River Commission, 180 Md. 584, 26 A.2d 547, a State agency relating to flood control activities was held not suable in tort in a suit brought by one injured by the alleged negligence of one of the agency's employes. See also Davis v. State, 183 Md. 385, 392, 393, 37 A.2d 880, relating to the State Board of Medical Examiners, and Mayor and City Council of Baltimore v. State, 173 Md. 267, 271, 195 A. 571, relating to the operation of a swimming pool in a public park, where the City was exercising what was held to be governmental function of the State itself.

It is clear, therefore, ordinarily at least, that Maryland State governmental agencies may not be sued without their consent in the courts of the State. And the same result follows in this federal court by reason of the 11th Amendment.

Counsel for Scofield Brothers, the original defendant, seek to distinguish these clear authorities of the Maryland Court of Appeals on the ground, as set up in the third-party complaint against the State Roads Commission, that the latter has purchased with State funds insurance designed to protect persons and property carried on its ferries and that the policy of the particular ferry boat—"is for coverage of $600,000 and provides that, as to the State Roads Commission's liability for loss of life or personal injury to any one upon said ferry the insurance company undertakes to make good to the said State Roads Commission all loss and damage or expense as the said State Roads Commission shall, as owner of said ferry, have become liable to pay or shall pay on account of such loss of life or personal injury; that the State Roads Commission has the right under said policy to require said insurance company without the payment of any additional premium, to waive any defense of governmental immunity that could otherwise be interposed on its behalf."

It is also pointed out that counsel appearing for the State Roads Commission in this suit are the Assistant Attorney General of the State of Maryland and Mr. William A. Grimes, who, it is said by counsel for Scofield Brothers, really represents the insurer. It seems to be argued by counsel for Scofield Brothers that, as it is the duty of the Attorney General to prosecute and defend on the part of the State all cases by or against the State, and section 3 of Article 32a of the Maryland Code makes it unlawful for State agencies to retain or employ other counsel, therefore it should be held that Mr. Grimes' appearance should be considered only as in accordance with section 140E of Article 89B of the Maryland Code, 1943 Supp., which provides that the trust indenture securing the bonds from which the purchase of the ferry was made might contain covenants in relation to the maintenance, operation, repair and insurance of the ferry project.

In my opinion the appearance of Mr. Grimes in this case in association with the Assistant Attorney General does not have the significance contended for by counsel for Scofield Brothers. Mr. Grimes does not appear on the record as counsel for the insurance companies and even if it should be fairly inferable that he does represent them in the matter, the insurer is not a party to this case and it is not even suggested it has or could have any primary liability to Scofield Brothers....