County Commissioners v. Duvall

Brent, J., delivered the opinion of the Court. On the 26th of August, 1878, the appellee, in passing along one of the public roads in Anne Arundel County, at a point where it was being repaired under the direction of the Road Supervisor, was struck and injured by a tree rolling over from a bank, outside the road and elevated about twelve feet above the level of the road-bed. The tree was cut down by two of the hands engaged in making the repairs, for the purpose of being used to fill up — 355 — a wash, in the road. A high wind was prevailing at the time, and, as the tree was felled, it was whirled over for several yards in a direction after the appellee, who had passed by the point where it stood, and the “butt end,” striking upon his rockaway and crushing it, inflicted upon him considerable personal injury. The proof is quite sufficient to establish a want of proper care on the part of those engaged in the work. The accident seems to have resulted from their negligence, and not in any way to have been attributable to the fault, or contributory negligence of the appellee. The third and tenth prayers of the appellants, which were rejected by the Circuit Court, raise the question of the liability of the County Commissioners of Anne Arundel County, upon the assumption that the act complained of was negligent, and upon that question will depend the reversal or affirmance of the judgment which was obtained by the appellee. The cases of Duckett, 20 Md., 468, Gibson, 36 Md., 229, and Baker, 44 Md., 1, are relied upon, on the part of the appellee, as conclusively settling this case. In all those cases the injuries, for which the County Commissioners were held liable, resulted directly from the bad condition of the public roads or bridges. The County Commissioners are specially charged by law with the duty of keeping these in good repair and safe for the travel of the public. Tyson’s Case, 28 Md., 510; Walter’s Case, 35 Md., 394, and cases above cited. If they fail to do so, and injury results, they are liable in an action at law, not by virtue of any liability at common law, but because they are made so by statute. They are not permitted to excuse themselves by the fact that the Eoad Supervisor is also required by law to keep the public road in repair, and may be made liable in a penalty or in damages for a failure to do so. Their obligation is a paramount and pre-existing one, and cannot be discharged by the failure of another — 356 — to do that which they, the Commissioners, are required by law to do. This principle is recognized and applied in the case of the Mayor and City Council of Baltimore vs. O’Donnel, 53 Md., 110. And it is the principle lying at the foundation of the cases relied upon by the appellee. Had the injury here resulted directly from the bad and neglected condition of the public road, there would be no doubt of the appellee’s right to maintain his action. But quite a different question arises. The injury here complained of, is not the direct result of a failure to keep the road in proper repair, but is occasioned by a collateral act done by those engaged in repairing it. The responsibility of the Commissioners, if it exists at all, must depend upon the doci rine of respondeat superior. This latter doctrine was very fully examined in a late case before this Court. In Deford’s Case, 30 Md., 179, the leading authorities are reviewed, and this Court, speaking through Judge Alvey, says on page 203, “And taking the latter decisions as enunciating the proper distinctions upon the subject, it results from them that the rule 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 about 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 unskilfulness or negligence in the course of their employment, and not the party engaging the contractor to do the work.” The work which was in progress upon the public road, at the time of the injury to the appellee, was under the direction of the Road Supervisor. His office was created, and his duties are fixed by a local law for Anne Arundel — 357 — County—the Act of 1876, ch. 354. He receives his appointment from the Commissioners, but secs. 4, 5 and 6, specially designate his duties and powers in the repairing of roads and bridges. Among other things, he is clothed with the duty of hiring hands and teams. The Commissioners are required “to fix and regulate, from time to time, the prices to he paid by Supervisors for the hire of necessary teams and laborers to execute any work under this law,” hut they do not contract with the laborer or employ his services, or direct what particular laborer or team is to he employed. All this is done by the Supervisor, not in obedience to any regulations and directions from the Commissioners, except as to the price to he paid, hut in the discharge of a duty imposed upon him by law. It is difficult, therefore, to sée how under the authority of Deford’s Case, it is possible that the laborers employed by the Supervisor to work upon thé public road are to. he considered the servants of the County Commissioners, and not the servants of the Supervisor. In Wood on Law of Master and Servant, see. 458, this doctrine is concisely stated. The author says, “ The corporation is not responsible for the acts of its officers in the discharge of the duties imposed upon them by law, except where the duty is purely ministerial. Where the powers or duties of an officer are conferred or defined by law, he is a, public officer, hut where the powers are conferred or the duties defined by the corporation itself, the officer is a mere servant or agent, and the corporation is chargeable for the consequences of his acts within the scope of his authority.” And this principle will be found running through all the cases where such a question has arisen. In the case of Ball vs. The Town of Winchester, 25 N. H., 440, it is said, “The surveyor of highways, in performing his official duties, is not the agent of the town, hut a public officer, clothed with such powers, and bur — 358 — dened with such duties as the law prescribes. His authority is not derived from the town, nor is he under their control, and he cannot in any proper sense be said to act for or in behalf of the town. His powers in reference to the repairing of highways cannot be enlarged nor abridged by any action of the town upon that subject, and what he does or declines to do in the rightful exercise of his authority, is done or with eld because the law enjoins upon him, and not because he is to act or refrain from acting, in obedience to the injunction of the town.” See also White vs. Inhabitants of Phillipstown, 10 Met., 110; Russell vs. The Mayor, &c. of New York City, 2 Denio, 461. In Walcott vs. Swampscott, 1 Allen, 101, the facts are not unlike those in the case before us. There the Court decided that the town was not liable in damages for an injury sustained by the carelessness of a laborer employed by a highway surveyor in repairing a highway. And so in Barney vs. The City of Lowell, 98 Mass., 570, where the injury was occasioned by a wagon, carelessly driven by the teamster employed by the superintendent to haul stone for the repair of the highway. These cases were decided upon the ground that the relation of master and servant did not exist with the town or corporation, and the maxim respondeat superior did not apply. 98 Mass., 571. The surveyor or superintendent of the repairs was treated as a public officer with duties defined by law, and not as the agent of the town in the performance of duties defined by them. This is precisely the condition of the present case. The Road Supervisor has his duties defined by law. In the discharge of those duties he is a public officer and not the mere agent of the Commissioners. The laborers employed upon the highway were employed by him under authority derived from the law and not from the Commissioners. — 359 — (Decided 1st July, 1880.) This made them his servants, and not the servants of the Commissioners ; “ and he is liable for any negligence or unskilfulness in the course of their employment,” and not the County Commissioners. Deford’s Case, 30 Md., 203. The law seems to he clear that the appellee, upon the facts in this case, has no right of action against the County Commissioners of Anne Arundel County. The judgment will therefore he reversed, without directing a new trial. Judgment reversed.