Symons v. Road Directors for Allegany County
| Decision Date | 14 February 1907 |
| Parties | SYMONS v. ROAD DIRECTORS FOR ALLEGANY COUNTY. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Allegany County; Robert R. Henderson Judge.
Action by Henry W. Symons against the Road Directors for Allegany County. Judgment for defendant, and plaintiff appeals. Affirmed.
Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, and BURKE, JJ.
A. A Doub, for appellant.
Benj. A. Richmond, for appellee.
This is an action brought by the appellant against the appellee to recover damages for injuries alleged to have resulted from the negligence of the servants and agents of the appellee while quarrying stone near a public road of Allegany county to be used in the repair of said road, which was under the control and in the care of the appellee. The plaintiff, at the time of the injury complained of, was traveling on said public road, driving a four-horse team, and using due care in their management and in his own conduct. He had stopped to water his horses at a county watering trough on the roadside and, while so engaged, a blast was discharged from the quarry which was from 100 to 300 feet from the road, and he was struck upon the head by a falling stone about the size of a walnut, and was seriously and permanently injured.
The defendant is a body corporate, under the name and title of the "Road Directors for Allegany County," created by chapter 262, p. 461, Acts 1904, with power to sue and be sued, and with powers, duties, and obligations with respect to the public roads in Allegany county, coextensive with the duties, powers, and obligations theretofore resting upon the county commissioners of Allegany county, with respect to the public roads and bridges in said county, except in so far as the same were modified or changed by the provisions of that act. The defendant pleaded, first, the general issue, and second, that under and in pursuance of the authority and requirements of chapter 225, p. 388, Acts 1904, known as the "Shoemaker Road Act," it did, on August 8, 1905, enter into a written contract with Frederick Perry to make over and repair a section of the public road, embracing the spot where the plaintiff was injured, in which contract it was provided that Perry should, at his own expense, furnish all materials used on said road, and all work and labor employed thereon, and would assume all risk and liability for accident and damages to persons or property that might result from the negligence or carelessness of said Perry or of his servants and agents in the prosecution of said work, and that said Perry was an independent contractor in the prosecution of said work, with full control thereof, subject to the supervision of the engineer and inspector of the state of Maryland, as provided by said act, and that defendant had no control over said engineer and inspector; that all the laborers employed in said work were employed, controlled, and paid by said Perry, and were subject to discharge only by him, and that, though defendant paid said Perry for the work done under said contract, all said work was under the exclusive supervision and control of said engineer and inspector, and in no way under the control of the defendant; and that the injury of the plaintiff was caused by the servants of said Perry, while working for him, as an independent contractor in the repair of said highway.
Issue was joined on the first plea, and there was a demurrer to the second plea, which was overruled. Thereupon the plaintiff replied to the second plea that he sued, not for injuries resulting from negligence in the repair of the highway done under the contract mentioned in the second plea, but for injury caused by negligence in blasting stone so near said highway, and under such circumstances as to be likely to do injury to persons using said highway. The defendant demurred to this replication, and its demurrer was sustained. Issue was then joined on the second plea, and the case was tried before a jury. At the close of the plaintiff's testimony the court granted a prayer offered by the defendant, instructing the jury that there was no evidence legally sufficient to entitle the plaintiff to recover under the pleadings, and that their verdict must be for defendant, and verdict and judgment was entered for defendant, from which this appeal was taken.
First, as to the demurrer to the second plea. The plea sets up in clear and precise language a written contract between the defendant and Perry, for the repair by him of the highway in question, at his own cost, and through servants and agents selected and controlled by him, and that the contract was made in pursuance of the authority and requirements of chapter 225, p. 388, Acts 1904, and that all the work was done under that contract. That act expressly required the commission created by chapter 51, p. 50, Acts 1896, to maintain, through its engineer, "immediate supervision of the execution and performance of each contract made under its provisions." All these facts were admitted by the demurrer, and upon these facts it cannot be questioned that Perry was an independent contractor for whose negligence the defendant could not be held liable, unless brought by proper pleading and proof within some one of the recognized exceptions to the application of the general rule. Deford v. Keyser, 30 Md. 179; City & Suburban Ry. v. Moores, 80 Md. 348, 30 A. 643, 45 Am. St. Rep. 345. The demurrer therefore was properly overruled.
Now, as to the demurrer to the replication to the second plea. In Hanover Insurance Co. v. Brown, 77 Md. 74, 25 A. 992, 39 Am. St. Rep. 386, in considering a demurrer to a replication, the court said: "It is the object of pleading to place on the record the facts which make up the plaintiff's cause of action, and the defendant's ground of defense." "The office of a replication or reply is to meet the allegations of the plea or answer." 6 Enc. Pl. & Pr. 461. Or, as stated by Mr. Poe in section 668 of his work on Pleading, it must "join issue upon, traverse, or confess and avoid, the matters set up in the pleas so as to produce an issue of fact." This replication, apparently, is by way of confession and avoidance. Such a replication Mr. Poe says in section 681 We think this replication may be regarded as admitting by implication the special matter alleged in the plea, but we do not think it can be regarded as alleging any such additional facts as would defeat or obviate the defense set up in the plea. It does not say defendant was doing the blasting, nor does it say who was doing it. For aught that appears in the replication, the blasting might have been done, neither by the defendant's servants nor by those of Perry, but by some stranger to both. This is not the degree of precision and certainty required in pleading. It intimates, though it does not distinctly charge, that a nuisance was maintained by some one upon land near the highway, and that its maintenance was, in some unexplained way, authorized or permitted by the defendant. If it was designed thereby to raise the question whether the defendant could, by the employment of an independent contractor, relieve itself from liability for directing or permitting blasting near the highway as an incident to the execution of the contract, all the facts necessary to show the alleged liability of the defendant should have been fully and clearly set out. The demurrer was correctly sustained.
It appears from the evidence that the work upon this highway was done under chapter 225, page 388, Acts 1904, the section of road having been selected for that purpose by the defendant and approved by the state commission mentioned in that act and that bids for the work were advertised for as required by the act, and the contract awarded under it to Perry. A written...
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