State Use of Weddle v. Board of School Com'rs of Frederick County

• Decision Date: 16 January 1902
• Citation: 51 A. 289,94 Md. 334
• Parties: STATE, to Use of WEDDLE, v. BOARD OF SCHOOL COM'RS OF FREDERICK COUNTY.
• Court: Maryland Court of Appeals

51 A. 289

94 Md. 334

STATE, to Use of WEDDLE, v. BOARD OF SCHOOL COM'RS OF FREDERICK COUNTY.

Court of Appeals of Maryland

January 16, 1902

Appeal from circuit court, Frederick county; Jas. McSherry, Judge.

Action brought in the name of the state of Maryland, to the use of John W. Weddle, against the board of school commissioners of Frederick county. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before FOWLER, BRISCOE, BOYD, PAGE, PEARCE, and SCHMUCKER JJ.

Milton G. Ulmer, Clayton O. Keedy, and Hammond Ulmer, for appellant.

Jacob Rohrback, Frank L. Stoner, and Vincent Sebold, for appellee.

BRISCOE J.

The question raised by the demurrer to the plaintiff's declaration in this case is one of more than ordinary importance. The equitable plaintiff is a citizen of Frederick county, and on the 15th day of March, 1900, brought a suit at law in the name of the state in the circuit court for that county against the board of county school commissioners of Frederick county, under article 67 of the Code, to recover damages for the death of an infant daughter while a pupil of one of the public schools of the county, and whose death is alleged to have been caused by the negligence of the defendant. The declaration substantially states that the defendant is a body politic and corporate under the laws of the state of Maryland, and as such has general control and supervision of the public schools and their property in Frederick county and that it was its duty to keep this property in such condition as to be safe for the children attending the schools as pupils thereof; that the defendant was the owner of a certain lot of ground and a building thereon situate in said county, and conducted upon the lot a public school known as the "Blue Mountain Public School," and had general supervision and control thereof; that on the 4th day of October, 1899, a single strand of wire was strung across the public school lot, and firmly fastened upon trees growing thereon, and the wire was so strung and fastened at such a height above the ground as to be extremely dangerous to the pupils of the school when running and playing upon the lot that the defendant wrongfully and negligently suffered and permitted the wire to be and remain upon the lot on the 4th of October, 1899, and a long time prior thereto. The declaration further avers that the daughter of the equitable plaintiff, on the 4th of October, 1899, while in attendance upon the public school as a pupil, and while running on the lot according to the habits of school children, was knocked down and mortally injured by the wire aforesaid, which subsequently resulted in her death, and for its alleged negligence in causing her death the plaintiff brings this suit. The defendant demurred to this declaration, denying its liability in damages in this action, and from a judgment sustaining the demurrer the plaintiff has appealed.

The question, then, presented for our consideration is whether under the law, the defendant can be held liable in this action. The appellant contends that the defendant's liability arises under section 19 of article 77 of the Code, titled "Education," subtitled "County School Commissioners," where the defendant is declared to be "a body politic and corporate," and is made "capable to sue and be sued"; and that the declaration that the corporate body should be capable to sue or be sued should be construed as imposing unqualified liability in this respect. Now, it is well settled, we think, both upon principle and authority, that at the common law no action for tort could be maintained against a quasi corporation, and, if the defendant is to be held liable in this case, it must be under the statute. Duer v. Dashiell, 91 Md. 668, 47 A. 1040. In the case of City of Providence v. Clapp, 17 How. 161, 15 L.Ed. 72, the supreme court of the United States, in passing upon a case where the suit was against the city of Providence to recover damages for an injury occasioned by an obstruction on the sidewalk of one of its streets, said: "It is admitted that the defendants are not liable for the injury complained of at common law, but the plaintiff must bring the case within the statute to sustain the action." In Hill v. City of Boston, 122 Mass. 346, 23 Am.Rep. 332, in which an action of tort was brought by a child who was attending a public school in a school house against the city of Boston for an injury suffered by reason of the unsafe condition of a staircase in the school house, it is said: "Although the English books contain numerous cases of indictments *** for neglect to repair highways, etc., no instance has been referred to in the frequent discussion of the subject in England and in this country in which an English court has sustained a private action against a public or municipal...