Deford v. State ex rel. Keyser

30 Md. 179, 1869 Md. LEXIS 21

• Court: Court of Appeals of Maryland
• Decided: February 19, 1869
• Status: Published

Opinion

Alvey, J.,

delivered the opinion of the Court.

This was an action under Article 65 of the Code of Public General Laws, instituted in the Superior Court of Baltimore city, by the State, for the use of certain of the 'children of Mrs. Ellen Keyser, against Benjamin Deford and Edward Robinson, for the alleged wrongful act, neglect and default ■ of the defendants, whereby the dpath of Mrs. Keyser was produced.

The eas,ei was removed from the Superior Court to the Circuit Court for Baltimore county, where it was tried; and the first question that occurs is as to the regularity of the removal..

It appears that there had been two juries sworn to try the cause in. the Superior Court; the first of which were withdrawn,. hecause of the discovery of some supposed favor or partiality, in. one of the panel; and the second of which were discharged because they were unable to agree upon a verdict, after trial. Several terms had elapsed, after issue joined, before motion was- made for the removal. The suggestion was made by the plaintiff, supported by the affidavit of James A. Foos, the next friend of the infant cestuis que use / and in such affidavit it is stated that the deponent had come to the belief that a fair and. impartial trial could not be had in that Court, since the issue joined. The Court, upon this suggestion and affidavit, ordered the removal of the cause to the Circuit Court for Baltimore county, to which the defendants excepted.

The ground of this exception appears to be, that because juries had been sworn to try the'cause, and several terms of the Court had been allowed to pass,., the right and power of removal did not then exist.

But in this position of the defendants we do not concur. . There had been no effectual trial of the cause; and after the discharge of the last jury, because of their inability to agree, the cause was still pending for trial, as much so, and to all intents and purposes,.as if a jury had never been sworn. The object of removal is to obtain a fair and impartial trial, and there is-no reason why the right should be lost because a jury had been sworn that could not agree. It indeed may often happen, that by means of the abortive trial, parties áre enabled to discover, for the first time, just grounds to apprehend that fairness and impartiality will not be obtained in the second trial. And if the miscarriage of the first trial, for any cause, were to be allowed to operate a preclusion of the right of removal in reference to a second, the great object of this constitutional power would, in fact, be defeated. The right of removal is given, (Const. 1864, Art. 4, see. 9; Const. 1867, Art. 4, see. 8,) whenever any party to a cause, or his counsel, can make it appear that a fair and impartial trial cannot be had; and to limit this right, in the manner contended for by the defendants, it could only be done by a manifest disregard of the plain terms of the Constitution. We think, therefore, the defendants’ first exception was not well taken.

The cause having been removed, and placed on the docket of the Circuit Court for Baltimore county, when it was regularly called for trial, neither the defendants nor their counsel, it appears, were present. The Court, however, proceeded to empannel and swear a jury, in the absence of the defendants and their counsel. On the succeeding day, after the jury had been fully sworn, the counsel of the defendants appeared in Court; and the defendants then suggested that they could not have a fair and impartial trial in that Court, and that the cause be removed to some Court of a different circuit. The Court overruled this application, and this ruling forms the subject of the second exception.

That the Court was right in refusing to order the removal in the then condition of the cause, we think is clear. The object of removal being to secure a trial in a different tribunal, the application for it must be made before the trial commences in the Court where the cause is pending. Here the trial had commenced, the jury having been actually sworn; and that the right of removal did not then exist, has been expressly decided in the case of Price vs. The State, 8 Gill, 295.

Nor can wc say that the Court below erred in refusing to dischai'ge the jury, upon the motion of the defendants, because of the absence, by reason of sickness, of one of the jurors; .notwithstanding the offer of readiness by defendants’ counsel to proceed with the trial, and their remonstrance against the delay. The whole matter was within the discretion of the Court, and its action upon the subject cannot be reviewed on appeal.

The next exception was taken to the refusal of the Court to remand the case back to the Superior Court of Baltimore city. The motion to remand was based upon what was supposed to be apparent errors, showing a want of jurisdiction in the Court to entertain the cause. And'the supposed errors of the Superior .Court, by which the jurisdiction of the Circuit-Court for Baltimore county failed to attach, were, that the affidavit for removal had not been made, as the law required, by a party to the cause; and that the suggestion for removal had been made too late.

This last ground assigned, to -sustain the motion, has already been disposed of, in considering the first exception. And the first mentioned ground, that the person making the affidavit was not a party, but the next friend only of the cestuis que use, is not more tenable than the last. The procJiein ami or next friend, it is true, is not a technical party- to the cause; but he is a party' within the meaning and contemplation of the Constitution and the Acts of Assembly to regulate and give force to the constitutional provision;- and is therefore capable of making the suggestion and affidavit for removal. The Court could not have done otherwise than refuse the motion.

In the next exception we have the defendants’ motion for leave to amend their pleadings, for the purpose of pleading in bar of the further maintenance of the action by the next friend, the fact that at the institution of the suit, Edwin 'Walker was, and at the trial still remained, the guardian of the infant cestuis que use, and as such, was alone entitled to institute the action in behalf of his wards. This motion the Court overruled, and we think, very rightly.

In' the first place, this being a motion for leave to amend pleadings, and therefore within the sound discretion of the Court, the judgment thereon is not the subject of review on appeal. Ellicott vs. Eustace, 6 Md., 506. But, apart from this, the matter proposed to be pleaded by way of amendment, was insufficient, and therefore immaterial, as a defence to the further prosecution of the action. The infant cestnis que use were properly represented by next friend, notwithstanding they had a guardian appointed by the Orphans’ Court.

By the common law infants could sue or defend only by guardian. It was by the Statute of Westminster, 1, c. 48, that they were authorized to sue by proohein ami in an assize; and by the Statute of Westminster, 2, c. 15, that they were authorized so to sue in all other actions. And, according to Lord Coke, since these statutes an infant shall sue by pro-ehein ami, and defend by guardian. 2 Inst., 261, 390; Co. Litt., 135 b. And Fitzherbert, in the N. B., (27,) H., lays it down,, that “An infant shall sue by proohein ami; but if the infant be defendant in any action, he shall make his defence by guardian and not by proohein ami.” - Mr. Har-grave thinks it probable, however, that neither Fitzher-bert nor Lord Coke designed to be understood as excluding the election to sue either by proohein ami or by guardian; and in accordance with this suggestion have been the decisions, and the established practice. 2 Wms. Saund., 5th Ed., 117, f. (1;) 1 Tidd’s Prac., 99. The proohein ami is, in contemplation of law, admitted by the Court to prosecute for the infant; though, according to the practice of our Courts, never by any actual order passed for that purpose. Ho becomes an officer of the Court, and subject to its orders and direction; and whether there be a guardian or not, appointed by a different authority, makes no difference, and does not affect the authority of the proohein ami to prosecute for the infant. He stands very much in the relation of an attorney to the case, and as it is supposed that ho is appointed by the Court, it is competent at any time for the Court to revoke his authority and remove him, and if it be necessary, to appoint another in his place. Com. Dig. Pleader, 2, c. 1.

The defendants’ sixth exception was taken to the Court’s refusal to strike out the name of the next friend, because it did not appear on the record that he had been admitted to prosecute for the infants, and because it appeared that one of the eestuis que use was of full age, at the time of bringing the suit. In our opinion, there was no ground for exception to this ruling of the Court. As we have said, it was not necessary, under our practice, that there should have been a formal order of admission of the proehein ami; his admission being implied until expressly disallowed. And as the infants were not capable of appointing an attorney, they could only sue either by proehein ami or guardian; and the fact that one of the eestuis que use was of full age, did not dispense with the necessity of having such officer to prosecute for those who were minors. In the case of a suit by two executors, one of whom is an infant, there the executor of full age may appoint an attorney for himself and the infant co-executor, because they both together make but one representative. 1 Tidd’s Practice, 99. But in this case, the parties suing are not suing in a representative character, but for the recovery of damages which they claim severally in their own right.

Having thus disposed of the several preliminary questions we come now to the main propositions of the case, which we shall state and. determine in as brief a manner as possible.

While it is admitted that Mrs. Keyser, the mother of the eestuis que use, came to her death by the fall of defendant Deford’s wall, the leading question in the case is, upon whom, of all the parties connected with the erection of the building, does the legal responsibility rest ? For the plaintiff, it is contended, that Deford is liable on two grounds: First, that the parties, whose negligent and wrongful acts produced the injury, were engaged or employed by him, or by others for him, and were, for the particular work, his servants; and, secondly, that he did not take due care to prevent the creation or erection of a nuisance on his ground, which it was his duty to have prevented, whether the erection was by his servants or others.

On the part of Deford,- against whom alone the judgment below was obtained, it is contended, that he is not legally responsible for the accident that occurred, because, first, he did not bear the relation of master or principal to the parties, or any of them, whose acts and neglect are supposed to have produced the injury; and, secondly, that the accident was produced by extraordinary causes, which, by the exercise of ordinary care and skill, could not be avoided.

The principles here involved, have been, upon various occasions, most elaborately discussed in the Courts of England, and it has only been within a few years past, and since the case of Laugher vs. Pointer, 5 B. & Cr., 547, in which the Judges divided in opinion, that the Courts of Westminster Hall have been able to arrive at a definite conclusion as to the true distinctions applicable to cases of the class to which this belongs. And, without referring to all the cases upon the subject, we may refer to the case of Quarman vs. Burnett, 6 M. & Wels., 499, which is regarded as a leading case, and the one in which the present approved doctrine was first definitely established.

In that case, the owners of a carriage were in the habit of hiring horses from the same person, to draw it for a day or drive, and the owner of the horses provided a driver, through whose negligence an injury was done to a third party; and it was held, that the owners of the carriage were not liable to be sued for such injury, upon the distinction taken between the liability resulting from the relation of master and servant, and that of employer and a contractor pursuing an independent employment. And, in the course of the able judgment that was delivered by Parke, B., he said: “ Upon the principle, that, qui faait per alium, faeit per se, the master is responsible for the acts of his servant; and that person is undoubtedly liable, who stood in the relation of master to the wrong-doer; he, who had selected him as his servant, from the knowledge of, or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey; and whether such servant has beén appointed by the master directly, or intermediately through the intervention of an agent, authorized by him to appoint servants for- him, can make no difference. But the liability, by virtue of the principle of relation of master and servant, must cease, where the relation itself ceases to exist; and no other person than the master of such servant can be liable, on the simple ground, that the servant is the servant of another, and his act the act of another.” And the principle thus announced has been applied in determining a large number of subsequent cases. As in the case of Milligan vs. Wedge, 12 A. & Ell., 737, where a butcher bought a bullock in market, and employed a licensed drover to drive it home, and the drover employed a boy, by whose negligent driving the bullock was allowed to run into the plaintiff’s show-room, and do considerable damage; it was held, that the butcher was not liable, as the drover exercised a distinct calling, and the boy whose negligent conduct caused the damage was his servant, and not the servant of the butcher, who was sought to be made .responsible. So in the case of Rapson vs. Cubitt, 9 M. & Wels., 710, where the defendant, a builder, was employed to execute certain alterations in a house, including the preparation and fixing of gas-fittings, to do which he made a sub-contract with a gas-fitter, through whose negligence the gas exploded, and injured the plaintiff; it was held that the builder was not liable, because the relation of master and servant did not exist between him and the gas-fitter, the party guilty of the negligence. And again, in the case of Reedie vs. The Railway Company, 4 Exch., 244, where a company, empowered to construct a railway, contracted under seal with certain persons to make a portion of the line, and by the contract reserved to themselves the power of dismissing any of the contractors’ workmen for incompetence. The workmen, in constructing a bridge over a public highway, negligently caused the death of a person passing beneath along the highway, by allowing a stone to fall upon him; it was held that the power to remove the workmen reserved in the contract, was not sufficient to create the relation of master and servant between the company and the workmen, and that the former was not liable for the negligence of the latter. See also Knight vs. Fox, 5 Exch., 721.

By these cases, the older case of Bush vs. Steinman, 1 Bos. & Pul., 440, in which the broader doctrine was maintained, of the liability of the employer for the acts of the party employed, without reference to the fact as to whether the latter was an independent contractor or servant, has been materially modified, if not entirely overruled. And taking the latter decisions as enunciating the proper distinctions upon the subject, it results from them that the rule of “ respondeat superior,” does not apply where the party employed to do the work, in the course of which the injury occurs, is a contractor, pursuing an independent employment, and, by the terms of the contract, is free to exercise his own judgment and discretion as to the means and assistants that he may think proper to employ abont the work, exclusive of the control and direction, in this respect, of the party for whom the work is being done. In such case, the workmen employed by the contractor are his servants, and he is liable for any negligence or unskilftilness in the course of their employment, and not the party engaging the contractor to execute the work.

The greatest difficulty, however, in these cases is in determining, upon the facts, who is to be regarded as the master of the wrong-doer. This of course depends mainly upon the terms and character of the contract of employment. And whether, in the case before us, the parties engaged in the erection of the wall that fell, were the servants of Deford, depends upon the control and direction that he could rightfully exercise over them. If they were at his command and bound to obey his orders and direction, in regard to the work they were engaged in, and could be, at any time he thought proper, discharged by him, then they were his servants, and he is liable for the consequences of their negligence and malfeasance committed in the course of their employment. But if, on the other hand, they were at work or directing the work on the building, as independent contractors or the servants and employees of independent contractors, over whom he could rightfully exercise no such control and direction, he is not so liable. The terms and manner of employment were, of course, matters of fact for the jury; it being for the Court to declare the legal relation that existed between the parties, upon any given state of facts. And assuming the facts to be true, as stated in the record, in regard to the terms and manner of the employment of Robinson and Thomas, we think they occupied the position of independent contractors, as contradistinguished from servants; and that the journeymen bricklayers and hod carriers, having been employed by Thomas and at work under his control, were his servants, and not those of Deford.

But, although it may be that Deford is not liable for the acts of these parties by reason of any such relation as master and servant, it does not follow that he may not be responsible for the consequences resulting from the defective work allowed to be done by them. The wall was in course of erection on his premises, by his sanction, under his contract, and for his use and benefit. It was immediately fronting on a public street, in a large city, and if the testimony, offered on the part of the plaintiff, be true, it was constructed in a most defective and dangerous manner; so much so, that it excited the alarm and apprehension of hundreds of people as they passed, and caused them to avoid the pavement in its immediate front. If this be so, it certainly constituted a nuisance, for which Deford would be liable. And the fact that the wall was erected by others, under contract, and to whom he did not bear the relation of master, will not excuse him; for, as was said by Loud Campbell, in Ellis vs. The Sheffield Gas Consumers’ Co., 2 E. & B., 767, it is a proposition absolutely untenable that in no case can a man be responsible for the act of a person with whom he has made a .contract. If the contractor does the thing which he is employed to do, the employer is responsible for that thing as if he did it himself. And in all cases where a party is in possession of fixed property, he must take care that it is so used and managed that other persons shall not be injured; and whether it be managed by his own servants, or by contractors, or their servants, makes no difference in respect to his liability. “If a man has anything to be done on his own premises, he must take care to injure no man in the mode of conducting the work. Whether he injures a passenger in the street, or a servant employed about his work, seems to make no difference.” Rapson vs. Cubitt, 9 M. & Wels., 713.

In the more recent case of Hole vs. S. and S. Railway Co., 6 Hurls. & Norm., 488, this subject was extensively discussed, and the distinctions were stated by the Court with great precision and clearness. There the defendants, a railway company, being authorized by Act of Parliament to construct a railway bridge across a navigable river, they employed a contactor to construct the bridge in conformity with the provisions of the Act, but before the work was completed, the bridge, from some defect in its construction, could not be opened, as it wras required it should be, and the plaintiff’s vessel was prevented from navigating the river. It was held, that the defendants were liable for the damage thereby caused to the plaintiff. And, in the course of his judgment, Pollock, C. B., said: “ I suggested, in the course of the argument, that where a man employs a contractor to build a house, who builds it so as to darken another person’s windows, the remedy is not against the builder, but the owner of the house. It may be that the same principle applies to cases where a man is employed by another to do an act which it is the duty of the latter to do. In such cases it is the duty of the owner of the soil to inquire what is in the course of being done — to know what is the plan — to see that the materials are good, and to take care that no mischief ensues. So here it was the duty of the company to see how the contractor was about to construct the bridge. They ought to have taken care to ascertain what he was about to do, what materials he . would use, and to have seen that the specifications and the materials were such as would ensure the construction of a proper and efficient bridge.”' And BaroN Wilde was even more explicit in stating the ground upon which the defendants were liable. He said; “ The distinction appears to me to be that, when work is being done under a contract, if an accident happens, and an injury is caused by negligence in a matter entirely collateral to the contract, the liability turns on the question whether the relation of master and servant exists. But when the thing contracted to be done causes the mischief, and the injury can only be said to arise from the authority of the employer, because the thing contracted to be done is imperfectly performed, there the employer must be stakea to have authorized the act, and is responsible for it. The present defendants were authorized to take land for the purpose of their railway, and to build a bridge over the Swale. Instead of erecting the bridge themselves, they employed another person to do it. What was done was done under their authority. In the course of executing their order, the contractor, by doing the work imperfectly, obstructed the navigation. It is the same as if they had done it themselves. It is not distinguishable from the case where a land owner orders a person to erect a building upon his land which causes a nuisance. The person who ordered the structure to be put up is liable, and it is no answer for him to say that he ordered it to be put up in a different form.”

■ We have thus largely quoted from the opinions of these learned Judges, because the reasoning employed by them is peculiarly apposite to the case before us, and the distinction they take is well maintained by authority. Ellis vs. Sheffield Gas. Consumer’s Company, 2 El. & Bl., 767; Pickard vs. Smith, 10 Com. B. N. S., 470; Gray vs. Pullen & Hubble, 34 Law Journal, 265; Congreve vs. Morgan, 18 N. Y., 84.

But it is contended, on the part of the defendants, that the wall was erected of good materials, and with ordinary skill and care, and that its fall was occasioned not by negligent or defective work, but by the operation of extraordinary causes; and evidence was offered to show what those causes were.

Whether the causes assigned were, in fact, in operation, and of such extraordinary character, and adequate to produce the effect alleged, without the fault of the defendants, were questions of fact for the jury. And if it be true, that by the operation of extraordinary causes, against which ordinary skill, care and foresight could not provide, the wall, erected in an ordinarily substantial and secure manner, was overthrown, it is clear the defendants would not be liable. Justice forbids that a party should be held liable under such circumstances. Blyth vs. The Birmingham Water Works Co., 36 Eng. Law and Eq. Rep., 506; 20 Md., 297.

Having thus stated the general principles and distinctions that must control the case, wre now proceed to apply them to the prayers before us, of plaintiff and defendants.

The first prayer of the plaintiff we think objectionable, because the term “ agents,” as employed in it, was not sufficiently defined to avoid misleading the jury. What construction the jury may have placed upon this prayer it is difficult to conjecture. As the plaintiff’s right to recover is predicated of the negligence and defaults of the defendants’ agents, the facts should have been stated, for the finding of the jury, giving rise to the relation of principal and agent or master and servant, in such a case as this. In leaving the jury to speculate as to what state of facts would constitute the parties employed, the servants or agents of Deford, in the sense in which he would be liable for their acts and negligence, was erroneous. And as the plaintiff’s second prayer is based upon the same hypothesis as the first, that is objectionable also. The Court was in error therefore in granting either of these prayers in the form in which they were proposed.

The first and second prayers of the defendants were properly rejected.

The action is brought in the name of the State as legal plaintiff, for the use of such of the children of the deceased as may have been actually damaged by her death; and those who have joined in bringing the suit are those, as we may presume, who supposed themselves damaged,* and if there be others who have not joined, it cannot prejudice the rights of those who have. Nor is it a matter of which the defendant Deford can complain, that all the children are not joined, for he is subject to but one action, for and in respect of the same subject matter of complaint; and the jury can only “give such damages as they may think proportioned to the injury, resulting from such death, to the parties respectively, for whom and for lohose benefit such action shall be brought;” and not to all the children, or even to all those who might or could show themselves injured by the death, unless they join in bringing the action. 1 Code, 449, Art. 65, sec. 2. And the joinder of a party, as cestui que use, who may not be entitled to a portion of the damages awarded, should not be allowed to defeat or prejudice the rights of others who may be entitled. It is for the jury, in all such cases as this, to say whether the condition of the child, without reference to age, is one of such dependence upon the deceased parent, as to entitle it to damages in respect of the injury suffered.

There was no error in rejecting the defendants’ third, fourth and fifth prayers, if for no other reason, because the propositions they embrace are contained in the sixth and seventh prayers of the defendants, which were granted. The Court should not be required to repeat or duplicate its instructions, but the effort should be to render them as free from involution and complexity as possible.

As the hypothesis of the defendants’ ninth prayer is more fully and explicitly stated in the twelfth, there Avas no error in refusing to grant it; but we think the twelfth prayer of the defendants unobjectionable, and that it should have been granted. The hypothesis of it brings it fully within the rule of exemption deduced from the authorities.

(Decided 19th February, 1869.)

The tenth prayer was properly refused, because it proceeds upon the theory that the defendants were not responsible for the negligence of their agents and servants, if they were skilful and competent workmen, unless their negligence was committed in consequence of some special direction given, or omitted to be given, by the defendants. This can be maintained upon no principle applicable to this case.

It is sufficient for us to say, that there was no error committed in rejecting the defendants’ fifteenth and seventeenth prayers. And, as to the eighteenth, we think the Court was right in rejecting that also; because, by its terms, it excluded from the consideration of the jury facts that might have been material to the plaintiff’s right to recover. It sought to exempt Deford from responsibility, and to exclude the plaintiff’s right to recover for and in respect of the defective wall and cornice, as a nuisance. As wo have said, whether Robinson was an agent or an independent contractor, if the wall and cornice were so constructed as to be dangerous, and therefore a nuisance, Deford would be liable for the consequences resulting therefrom • and the prayer is objectionable for excluding from the jury that aspect of the case.

There being error in granting the two prayers of the plaintiff, and also in rejecting the twelfth prayer of the defendants, it follows that the judgment appealed from must be reversed, and the cause remanded on procedendo, for new trial; but, as the verdict of the jury was in favor of Robinson, one of the defendants, and there being no appeal from the judgment thereon, by the plaintiff, he stands acquitted, and cannot be again required to appear and abide the result of another trial. The further prosecution of the cause, therefore, must be against Deford alone.

Judgment reversed and procedendo awarded.