Neuenschwander v. Washington Suburban Sanitary Commission

• Decision Date: 23 July 1946
• Docket Number: 168.
• Parties: NEUENSCHWANDER v. WASHINGTON SUBURBAN SANITARY COMMISSION et al.
• Court: Maryland Court of Appeals

48 A.2d 593

187 Md. 67

NEUENSCHWANDER v. WASHINGTON SUBURBAN SANITARY COMMISSION et al.

No. 168.

Court of Appeals of Maryland

July 23, 1946

Appeal from Circuit Court, Prince George's County; Charles C Marbury and John B. Gray, Jr., Judges.

Action by Doris Neuenschwander against the Washington Suburban Sanitary Commission, a body corporate, and the Mayor and City Council of Hyattsville, a body corporate, for damages for personal injuries allegedly sustained when the plaintiff stepped on the defective top of a sewer manhole. From a judgment for the defendants, the plaintiff appeals.

Affirmed.

S Marvin Peach, of Upper Marlboro (Bird H. Dolby, of Mount Rainier, on the brief), for appellant.

W Carroll Beatty, of Hyattsville, and Nicholas Orem, Jr., of Washington, D. C. (Nicholas Orem, Jr., Duckett, Gill & Anderson and T. Howard Duckett, all of Washington, D. C., on the brief), for Washington Suburban Sanitary Commission.

W. Carroll Beatty of Hyattsville, and Caesar L. Aiello, of Washington, D. C., for Mayor and City Council of Hyattsville.

Before DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.

DELAPLAINE Judge.

This suit was brought by Doris Neuenschwander in the Circuit Court for Prince George's County against Washington Suburban Sanitary Commission and the Mayor and City Council of Hyattsville to recover damages for injuries sustained on June 23, 1944, when she stepped upon the metal top of a sewer manhole along the sidewalk on Madison Street in Hyattsville. She alleged in her declaration that the metal to turned upwards, thrusting her left leg into the manhole, throwing her to the ground, and severely wrenching her body; and that she has suffered continuous plain, has spent large sums of money for medical and hospital treatment, and has been advised to undergo a surgical operation. She further alleged that the manhole was maintained negligently by defendants and was in an unsafe condition for pedestrians. Defendants pleaded that, because of the fact that they are municipal corporations, they are not liable for damages. Plaintiff demurred to the pleas, and the Court sustained the demurrers on the ground that the declaration failed to allege that defendants knew or should have known of the defective condition

The law is established that a municipal corporation may be held liable for injuries caused by its negligence in failing to keep the streets and sidewalks under its control reasonably safe for travel in the ordinary manner, and in preventing and removing any nuisance affecting their use and safety. Cordish v. Bloom, 138 Md. 81, 85, 113 A. 578; Mayor and City Council of Baltimore v. Eagers, 167 Md. 128, 136, 173 A. 56; Mayor and City Council of Baltimore v. Thompson, 171 Md. 460, 189 A. 822. But a municipal corporation is not liable for injuries caused by the defective condition of a street, unless it is shown that it had actual or constructive notice of such condition. Constructive notice is such notice as the law imputes from the circumstances of the particular case. It is the duty of municipal authorities to exercise active vigilance over the streets to see that they are kept in a reasonably safe condition for public travel. After a street has been out of repair so that the defect has become known and notorious to those traveling the street, and there has been full opportunity for the municipality to learn of its existence and repair it through its agents charged with that duty, the law imputes notice to it and charges it with negligence. Keen v. Havre de Grace, 93 Md. 34, 48 A. 444; City of Annapolis v. Stallings, 125 Md. 343, 93 A. 974; Com'rs of Delmar v. Venables, 125 Md. 471, 476, 94 A. 89. But the declaration in a suit against a municipal corporation alleging injuries caused by a defect in a street need not expressly allege that the corporation had notice of the existence of such defect, for the charge of negligence implies a failure of the corporation to repair the street after actual or constructive notice of the need for such repair, and no such allegation is included in the form of declaration recognized by statute as sufficient in a case of this nature. Code 1939, art. 75, sec. 28(37); Washington, B. & A. Electric R. Co. v. Cross, 142 Md. 500, 505, 121 A. 374.

After the Court sustained the demurrers to the declaration, plaintiff filed an amended declaration. The first count was similar to the original declaration, but the second count alleged that defendants knew or, by the exercise of reasonable care, should have known of the dangerous condition of the manhole and metal top. In the meantime defendants learned that the Legislature of Maryland had passed an Act in 1943, applicable to Prince George's County, providing that no suit for damages shall be maintained against a municipal corporation unless written notice of the claim shall be presented within 90 days after the injury or damage is sustained. Defendants accordingly withdrew their pleas and filed demurrers alleging that plaintiff had failed to comply with the Act of 1943. The Act provides: 'No action shall be maintained and no claim shall be allowed against any county or municipal corporation of Maryland, for unliquidated damages for any injury or damage to person or property unless, within ninety days after the injury or damage was sustained, written notice thereof setting forth the time, place and cause of the alleged damage, loss, injury or death shall be presented either in person or by registered mail by the claimant, his agent or attorney, or, in case of death, by his executor or administrator, to the City Solicitor of Baltimore City, the County Commissioners, or the corporate authorities of the municipal corporation, as the case may be. The provisions of this section shall only apply to Caroline, Montgomery and Prince George's Counties.' Acts of 1943, ch. 809, Code Supp.1943, art. 57, sec. 18.

On account of plaintiff's failure to allege compliance with the statute, the Court sustained the demurrers and entered judgment for defendants. It has been questioned on this appeal whether Washington Suburban Sanitary Commission is a municipal corporation within the contemplation of the Act. The word 'municipal' is derived from 'municipium,' a city having the right of Roman citizenship, governed by its own laws in respect to local affairs but united to the republic by ties of sovereignty and general interest. Likewise in the early law of England, the term was applied to self-governing cities and towns. In later years, however, its application was extended to include the internal government of the State. So, a municipal corporation is now defined as a department of the government of the State, created by the Legislature with political powers to be exercised for the public welfare. Hence, this Court recognizes that the term 'municipal corporation' is synonymous with 'public corporation.' Phillips v. City of Baltimore, 110 Md. 431, 438, 72 A. 902, 25 L.R.A.,N.S., 711. In addition, the word 'municipality' is frequently used as a synonym of 'municipal corporation.' Lease v. Upper Potomac River Commission, 179 Md. 543, 20 A.2d 498; 1 McQuillin, Municipal Corporations, 2d Ed., sec. 128. It is universally recognized that every municipal corporation is subject to absolute control by the Legislature. However great or small its sphere of action, it remains the creature of the State exercising privileges and powers subject to the sovereign will. Johnson v. Luers, 129 Md. 521, 99 A. 710; City of Trenton v. State of New Jersey, 262 U.S. 182, 43 S.Ct. 534, 537, 67 L.Ed. 937, 29 A.L.R. 1471. The Maryland Legislature has declared the county commissioners of every county in the State to be a corporation (Code 1939, art. 25, sec. 1), and the Court of Appeals considers them to be a municipal corporation. Talbot County Com'rs v. Queen Anne's County Com'rs, 50 Md. 245, 259; Gordon v. Com'rs of Montgomery County, 164 Md. 210, 213, 164 A. 676; Maryland Racing Commission v. Maryland Jockey Club, 176 Md. 82, 87, 4 A.2d 124, 479. Compare Clauss v. Board of Education of Anne Arundel County, 181 Md. 513, 30 A.2d 779.

The attributes of a municipal corporation are possessed by Washington Suburban Sanitary Commission to an extent amply sufficient to bring it within that designation. It was created in 1918 by an Act of the Legislature, Laws 1918, c 122, by which the members of the Commission were constituted a body corporate with authority to construct, maintain and operate systems for water supply, sewerage, drainage, and refuse collection and disposal in a designated sanitary district in Montgomery and Prince George's Counties. The Sanitary Commission has authority to appoint all employees necessary to carry out the purposes of the Act. It can purchase land and exercise the power of eminent domain. It is also empowered to issue bonds, and to determine the amount to be raised by taxation for its purposes in Montgomery and Prince George's Counties. It is expressly authorized to enter into contracts with the Commissioners of the District of Columbia or other Federal officials for the connection of its water supply, sewerage and drainage systems with those of the District of Columbia in order to obtain water by purchase from the District of Columbia or to dispose of the sanitary district's sewage and drainage. There is no question that the Legislature had authority to create this municipal corporation and to vest it with appropriate powers to carry on its work essential to the health and welfare of the people in the designated district. Dahler v. Washington Suburban Sanitary Commission, 133 Md. 644, 106 A. 10. Of course, if an agency is formed to operate a water supply or sewerage system merely as an auxiliary of a city or county government, it would not be a municipal corporation,...