Spriggs v. Levitt & Sons, Inc.

• Citation: 267 Md. 679,298 A.2d 442
• Decision Date: 11 January 1973
• Docket Number: No. 127,127
• Parties: , 62 A.L.R.3d 508 James SPRIGGS et ux. v. LEVITT & SONS, INC., et al.
• Court: Maryland Court of Appeals

Page 679

267 Md. 679

298 A.2d 442, 62 A.L.R.3d 508

James SPRIGGS et ux. v. LEVITT & SONS, INC., et al.

No. 127.

Court of Appeals of Maryland.

Jan. 11, 1973.

Harleigh P. Ewell, Bowie (Robert H. Law and Law & Ewell, Bowie, on the brief), for appellants.

Leo Wm. Dunn, Jr., Hyattsville (Nylen & Gilmore, Hyattsville, on the brief), for Levitt & Sons, Inc.

Alan John Leidecker, Associate County Atty. (Walter H. Maloney, Jr., County Atty., Harry L. Durity and John R. Barr, Associate County Attys., Upper Marlboro, on the brief), for Prince George's County.

Frank W. Wilson, Sp. Atty., Rockville (Francis B. Burch, Atty. Gen. and Nolan H. Rogers, Sp. Asst. Atty. Gen., Baltimore, and Carl Harrison Lehmann, Sp. Atty., Upper Marlboro, on the brief, for State Highway Administration.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

SMITH, Judge.

Sick at heart and outraged when a nearby stream overflowed its banks and flooded their home after a heavy rain on July 26, 1969, appellants, Mr. and Mrs. James Spriggs (the Spriggs), a year and a half later through counsel apparently trained a shotgun in the nature of a suit for damages against anyone and everyone who might conceivably have any possible liability for their loss. ¹ They were unsuccessful in the circuit court. Here they succeed only in winning our sympathy.

The Spriggs' home is on the west side of Route 301 slightly to the north of its intersection with Mitchellville Road in Prince George's County. Their declaration alleged that drainage from approximately 158 acres of land west of Route 301 adjacent to their home flows into a small stream running in a direction approximately parallel to Mitchellville Road and between that road and their home. It passes through a culvert under Route 301 and continues in a generally easterly direction. The drainage area south of Mitchellville Road which contributes to this stream passes under the road by a preexisting culvert and a pipe said to have been 'constructed by the defendant Levitt & Sons, Incorporated' (Levitt) and installed by that corporation 'before the months of July and August 1969' when it 'was engaged in extensive construction in the area which drains to the creek adjacent to the (Spriggs') home.'

The Spriggs sued Levitt, the State Roads Commission, the City of Bowie, the Washington Suburban Sanitary Commission, and the Prince George's County Board of County Commissioners. Motions raising preliminary objections on the basis of governmental immunity were filed by each of the governmental bodies. These motions were granted without leave to amend. The Spriggs here challenge only the granting of the motions as to Prince George's County and the State Roads Commission, now the State Highway Administration of the Department of Transportation.

The case proceeded to trial against Levitt. The Spriggs contended in their first count that Levitt had placed a pipe of inadequate size under the road, thus causing the flood. A motion for directed verdict was granted at the end of the plaintiffs' case as to that count on the ground, conceded by the Spriggs, that the proof did not support that count, a point not an issue here. The second count claimed that the construction work performed by Levitt had 'created large areas of bare soil, thus increasing the runoff from the area which contributed to the stream adjacent to the (Spriggs') property,' that '(t) he bare soil and the increased rate of runoff combined to increase the siltation of the said creek' and this 'increased rate of runoff and the more advanced siltation of the stream . . . combined to cause the flooding which damaged the (Spriggs') property . . ..' A jury returned a verdict in favor of Levitt.

In their appeal against Levitt the Spriggs complain only of the testimony of an expert witness produced by Levitt. He said that preliminary plans for grading and drainage were submitted to various county agencies. We find it unnecessary to pass upon the admissibility of this testimony for two reasons. First, the objection was made after the answer to the question had been given and there was no motion made to strike out what was actually an unresponsive answer, the question having been, '(W)hat did those plans consist of?' In Greater Baltimore Consolidated Market Authority v. Duvall, 255 Md. 90, 256 A.2d 882 (1969), Judge Marbury said for the Court:

'If we assume without deciding that the testimony complained of was inadmissible, the appellant waived its objection to its admission by not moving to strike out the non-responsive answer of the witness so that the alleged error, if any, has not been preserved for our consideration on this appeal.' Id. at 94, 256 A.2d at 884.

Secondly, without objection, virtually the same testimony came from this witness at a later time in the proceedings. Accordingly, as Judge Prescott put it for the Court in Forrester v. State, 224 Md. 337, 344, 167 A.2d 878 (1961), '(I)f we assume without deciding that the evidence was inadmissible, any objection to its admission was waived by its subsequent admission without objection.' See also Hyson v. State, 225 Md. 140, 142, 169 A.2d 449 (1961); Journigan v. State, 223 Md. 405, 412, 164 A.2d 896 (1960); and State Roads Comm. v. Bare, 220 Md. 91, 93-95, 151 A.2d 154 (1959). Cf. Baltimore & O.R.R. v. Plews, 262 Md. 442, 470-471, 278 A.2d 287 (1971).

Against the State Roads Commission the Spriggs claimed that the culvert under Route 301 was of insufficient size to service the drainage area, that the Commission had permitted an accumulation of debris which reduced the flow of the stream, that prior to the flooding the Spriggs informed the Commission of this blockage and after inspection its representative informed the Spriggs that nothing could be done to alleviate the condition, but after the flooding the Commission cleared the debris 'which greatly reduced the tendency of the stream to flood.'

Suit against Prince George's County was based upon two theories. The first was that Levitt's work had been done pursuant to permits issued by the county, that the construction and drainage pipes 'were specifically approved by the County and required as part of the construction plans submitted before' Levitt was 'permitted to begin construction, and that (the County) had a duty to refrain from issuing permits which would approve work which would cause damage to persons in the position of the plaintiffs, and such duty was breached by issuing permits and approving the construction performed by . . . Levitt . . ..' The second thoery went out the window with the unfavorable jury verdict in the suit against Levitt since it was based on the claim that all of the work done by Levitt was as the agent of the county 'in that the streets, storm sewers and drainage system were to be the property of and for the benefit of . . . Prince George's . . . County . . ..'

Although recognizing the doctrine of governmental immunity, the Spriggs urge that the law in this State 'is...