Phillips v. City of Baltimore

• Decision Date: 23 March 1909
• Citation: 72 A. 902,110 Md. 431
• Parties: PHILLIPS v. MAYOR, ETC., OF BALTIMORE.
• Court: Maryland Court of Appeals

72 A. 902

110 Md. 431

PHILLIPS v. MAYOR, ETC., OF BALTIMORE.

Court of Appeals of Maryland

March 23, 1909

Appeal from Circuit Court, Baltimore County; N. Charles Burke Judge.

Action by Annie M. Phillips against the Mayor and City Council of Baltimore. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, THOMAS and HENRY, JJ.

Edward L. Ward and John S. Biddison, for appellant.

Sylvan H. Lauchheimer, for appellee.

PEARCE J.

This is an appeal from a judgment of the circuit court for Baltimore county entering a judgment of non pros., and judgment for defendant for costs. The plaintiff, Annie M. Phillips, sued the mayor and city council of Baltimore in the circuit court for Baltimore county, alleging in her declaration that her husband, Robert L. Phillips, was the owner of a lot of land and dwelling house thereon at the corner of Hardwood and Pimlico avenues in Baltimore county, bounding on the limits of Baltimore city, where the plaintiff resided with her husband and children, and that during the summer of 1905 the defendant permitted the surface water and drainage from that part of Pimlico avenue adjoining said residence to accumulate at the intersection of said two avenues within the limits of said city, so as to form a cesspool, emitting noxious odors and gases, and causing the drainage from said cesspool to flow into the cellar of said residence, and from thence into a well on said premises, used by her for drinking and other family and domestic purposes, and that the water of said well was thereby contaminated and poisoned, by reason of which the plaintiff was made ill and sick, and was rendered unable to perform her household duties, of all of which the defendant had notice, but failed and refused to remedy said conditions or to abate the nuisance created thereby. Upon return of the summons the defendant, appearing specially for that purpose, and no other, moved for a judgment of non pros., and for the quashing of the writ of summons, and the sheriff's return thereon, on the ground that the defendant is a municipal corporation having within its own limits courts to try causes in which it may be a party, and that as such corporation it can only be lawfully sued, in that action, in the courts of Baltimore city. The defendant also filed a plea to the jurisdiction, appearing specially for that purpose, and without waiving its motion to quash, setting up the same ground as in the motion, and averring that as a corporation it is a nonresident of Baltimore county, and does not carry on any regular business, or habitually engage in any avocation or employment, in Baltimore county, and therefore cannot be sued therein. This plea was duly supported by affidavit. The plaintiff replied that the defendant is not a nonresident of Baltimore county within the meaning of the statutes of this state, and that it does carry on a regular business in Baltimore county, and is habitually engaged in an avocation or employment therein within the meaning of said statutes. Issue was joined, and testimony was taken from which it appeared that the mayor and city council of Baltimore, acting through the water department, owns and maintains certain water mains within the limits of Baltimore county, which were purchased from the Baltimore County Electric & Water Company, and by that means furnishes water to certain residents of Baltimore county around Westport, Highlandtown, West Arlington, York Road, and Bel Air Road, and that the annual receipts from that source is about $10,000, out of $925,000 derived from sales of water in Baltimore city and Baltimore county.

This being a suit for injuries to the person, the action is confessedly transitory in its nature (Gunther v. Dranbauer, 86 Md. 6, 38 A. 33), so that the only question in the case is whether the defendant, as a municipal corporation, can in this form of action, and under the proof in this case, be sued elsewhere than in one of its own courts. The distinction between local and transitory actions still exists in this state, and it was so declared in the latest case on the subject in this state (Mayor and City Council of Baltimore v. Meredith's Ford Turnpike Company, 104 Md. 351, 65 A. 35), in which it was held that a municipal corporation may be sued, in an action of trespass to land, in courts other than those within its territorial limits when the cause of action arose in another jurisdiction. There was then no decision of the highest court in this state upon the question presented which was regarded as direct, but this court then said, citing Crook v. Pitcher, 61 Md. 510, Ireton v. Mayor and City Council of Baltimore, 61 Md. 432, and Gunther v. Dranbauer, 86 Md. 1, 38 A. 33, that "the rule seems to be well established, both upon reason and authority, that trespass to real property is a local action, and must be brought in the county or place where the cause of action arose."

In Crook v. Pitcher the action was brought by the appellee in the court of common pleas of Baltimore city for obstructing a highway in Baltimore county, and the plaintiff obtained a verdict and judgment. On appeal the judgment was reversed the court saying: "If the cause of action could only have arisen in a particular place, the action is local, and the suit must be brought in the county or place in which it arose. Actions for damages to real property, actions on the case for nuisance, or for the obstruction of one's right of way are, according to all the authorities, local." In Ireton's Case the plaintiff sued the city of Baltimore for damages to his mill property in Baltimore county in the circuit court for that county. The defendant, after appearing generally, moved to quash the summons, on the ground that it could only be sued in its own courts, and the motion was granted. On appeal this judgment was reversed, because the motion came too late, but the court also declared that, as "the injury sued for was to real estate, it was local, therefore, and not transitory," and cited Patterson v. Wilson, 6 Gill & J. (Md.) 499, which is directly in point. In Gunther v. Dranbauer the appellee sued the appellant in the superior court of Baltimore city for personal injuries sustained by him by reason of an unlighted obstruction placed by the defendant in a public highway of Baltimore county, over which plaintiff drove in the night. In that case Judge McSherry said: "It is undoubtedly true that local actions must be brought in the jurisdiction where they arise. *** But there must be a test by which it may be determined whether a particular cause of action sounding in damages is local or transitory; and an unerring one inheres in the nature of the subject of the injury as differing from the means whereby, and the mere place at which, the injury was inflicted. If the subject of the injury be real estate or an easement, such as a right of way, whether private or public, obviously the action must be local, for the reason that the injury to that particular real estate or easement could not possibly have arisen anywhere else than where the thing injured actually was situated. But if the subject of the injury be an individual, then an injury to that individual's person, no matter by what means occasioned or where inflicted, is essentially an injury to a subject not having a fixed immovable location, and an action to recover damages therefore would necessarily be transitory." These three cases decide that local actions must be brought in the jurisdiction where they arise, and Ireton's Case practically and logically decides that this rule applies where a public municipal corporation is defendant, and has inflicted damages upon real property in the jurisdiction where the suit is brought. But they go no further. The Meredith Ford Turnpike Company's Case does expressly decide, following the logical implication from Ireton's Case, that such a municipal corporation can in this state be sued for a trespass upon real estate beyond its own territorial limits, in courts other than its own, and that in such case it must be sued in the jurisdiction where the real estate lies, but it leaves undetermined whether such a corporation can be sued in courts other than those of its own territorial limits, upon a transitory cause of action. In view of the decision in the Meredith Ford Case, which we adhered to, it would be idle to review or consider the cases cited by the appellees here, such as Lehigh County v. Kleckner, 5 Watts & S. (Pa.) 186, and Nashville v. Webb, 114 Tenn. 435, 85 S.W. 404, to sustain their ruling that at common law, "although the action may...