Chesapeake & Ohio Canal Co. v. County Commissioners

57 Md. 201 | Md. | 1881

Ritchie, J.,

delivered the opinion of the Court

This case has its origin in that of Eyler against the present appellee, heretofore reviewed by this Court, and reported in 49 Md., 257.

The facts of that case entering into this are, that, Eyler brought his action against the said Commissioners to recover damages for injuries sustained by reason oí' the defective condition of a bridge across the Chesapeake and Ohio Canal, over which he was riding on horseback. The road on which this bridge is situated is a public county road in Allegany County, and was such before the canal was made. This road, the Coinpany, in constructing its canal, cut in two, and connected again by the erection of a bridge, which bridge having been burnt down during the late war, the Company replaced it with the one on which the accident to Eyler occurred.

The County Commissioners resisted that suit mainly on the ground that the Canal Company was by law hound to erect and keep in repair the said bridge, and that therefore the action should have been brought against it. This defence the learned Judges below sustained; hut on appeal to this Court their judgment was reversed, and Eyler was awarded a new trial.

When the record was sent back the case was removed to Garrett County, and tried at the May Term, 1879, the trial resulting in a judgment for the sum of $2418.00 damages, and $379.58 costs, against the Commissioners.

This judgment the Commissioners paid, and thereupon instituted suit against the appellant to recover back the amount of the damages and costs so paid, with the interest accrued thereon, and also all the costs and counsel fees incurred hy them in conducting the defence. In this suit they were successful, the jury finding a verdict in their favor for ISSSNAl, a sum which according to their calculation, as shown hy a statement handed to the clerk by the foreman, was made up of the several items claimed as aforesaid. On this verdict judgment was entered, and from this judgment the present appeal was taken.

The narr. after setting out the facts relating to the bridge, Eyler’s injuries, his suit and recovery thereon, proceeds with the averments that the obligation was upon the appellant to keep the said bridge in safe condition, that the appellant had notice of the said suit of Eyler and participated with the appellee in defending the same, and that it was bound, in law to re-imburse the appellee all its said payments and expenditures, but that although so bound, and notwithstanding demand therefor, had neglected and refused so to do.

The grounds upon which the appellant seeks a reversal of the judgment below, are succinctly stated as follows: First, that the Canal Company, if bound to erect a bridge at the time it cut through the road, which was about the year 1846, has been relieved of that- duty by operation of our statutes since enacted, which declare that the County Commissioners “ shall have charge of and control over the county roads and bridges,” and “may build and repair bridges, and levy upon the property of the county therefor.” Secondly, that even conceding the Canal Company was under obligation to keep the bridge in safe condition, the Commissioners have no right of action over against the Company, because this Court in Eyler’s Case decides that the law imposed upon the Commissioners a primary and unqualified obligation, so far as the public is concerned, to maintain and keep the bridge in proper repair, and that by virtue of this responsibility, and from having neither compelled the Canal Company to make the bridge safe for travel or done so themselves, the appellee was in pari delicto with the Company, and as a joint wrong-doer could not recover or have contribution from the Company. Thirdly, that no such notification was given the Company of Eyler’s suit, as would render the judgment in that case binding upon it; and lastly, that if erroneous in the foregoing propositions, and the appellant is affected at all by the litigation between Eyler and the Commissioners, it is not concluded by it to the extent of the present judgment, because as it alleges, a portion of this judgment is for costs and counsel fees incurred by the Commissioners exclusively in their own behalf at the first trial with Eyler, and on the appeal therefrom, to neither of which proceedings it claims was it actually or constructively a party, nor notified to participate in them.

In expressing our views upon the points thus made by the appellant: its demurrers to appellee’s narr. and replication, and its exception to the Court’s ruling on the prayers are necessarily disposed of, and they need not therefore be considered in detail.

We do not think it open to dispute, that the Canal Company was hound in law to connect again by suitable means, any public road severed by it in constructing its canal. This was expressly decided in the case of Leopard vs. The Ches. & Ohio C. Compang, 1 Gill, 229. The principles underlying that decision have been repeatedly recognized by this and other Courts. They have been frequently applied in the excavation of streets and thorough hires by railway companies, and other disturbances of highways. The cases of Dygert vs. Schenck, 23 Wendell, 446, and of Trustees of Burton Township vs. Tuttle, 30 Ohio St., 68, are especially analogous to the present one. They arose from injuries received by persons from the defective condition of bridges erected by the owners of the soil, where they'had cut through public roads in constructing raceways to their mills.

In the former case, Cowen, J., in delivering the opinion of the Court, thus defines the relations of the owner of the land and the public :

“ The defendant certainly committed no trespass in digging the ditch. It was his own soil. The only right adverse to his, was one to have a common highway for the purposes of travel. All the public could require was that he should make and keep the road as good as it was before he dug the ditch. That he accomplished by building a substantial bridge originally, which did not get out of repair for a number of years. The road however, in the end, proved to he less safe than it was when the bridge was first built, certainly less so than before the ditch was dug. In suffering this, the defendant came short of his obligation to the public.” In the Ohio Case, the Court, using almost the same language, says: u The owner committed no trespass in digging the ditch through his own soil, hut what the public can require is, that when he cuts the highway, he should make and keep the road as good and safe for the public, as it was before he dug the race. This can be accomplished by building and keeping a substantial bridge over the race at the crossing.”

It may be here observed of the argument made by appellant’s counsel, that by the terms of its charter and necessary implication therefrom, the Canal Company was invested with the power to destroy public roads where necessary to cross them, without liability to restore the means of travel over them, that the same claim was urged by the Company’s counsel in Leopard’s Oase, in 1 Gill, hut was there distinctly negatived by the Court in these words:

“ Such a proposition we think is not warranted by any act of legislation before us, and nothing hut a grant of such a power in terms the most full and unequivocal, would induce this Court to believe that the Legislatures referred to, designed to confer it. Such terms are not to he found in the charter of the Canal Company, and we do not deem it necessary to use arguments or illustrations, to show the non-existence of such a power.”

That the Canal Company itself has recognized its obligation to maintain a bridge where Eyler was injured, is shown by its erection of one at that place shortly after it severed the road, and when it was burnt down during the war, by erecting the present one.

And in regard to this identical bridge, this Court in the case referred to in 49 Md., thus explicitly states the effect of previous decisions, and its own concurrence therewith : “ It is therefore certain that the duty of maintaining and keeping this bridge in repair, is devolved upon the Canal Company.”

It is simply for the additional security and convenience of the public, that the County Commissioners are held primarily responsible for the safe condition of the bridge, and not in anywise to lessen the obligation of the Canal Company to keep the same in repair.

And so far from meaning to imply, in declaring this duty of the Commissioners .towards the public to ho primary, that the Canal Company could not he held answerable over to the Commissioners, on page 276 of tli o opinion in 49 ilíü, we expressly say: “But while we thus maintain the liability of the Commissioners to the appellant in this action, the Canal Company is by no means discharged from its obligation to maintain and repair this bridge; nor are the Commissioners left without remedy against the Company. Upon the principles decided in many of the cases referred to, as also by the Supreme Court of the U. S., in City of Chicago vs. Robbins. 2 Black., 418, and 4 Wallace, 657, they may have their remedy over against the Company, for whatever damages may he recovered against them in this action.”

Nor do we perceive from the nature and facts of this case any ground for defeating the appellee’s suit, because of the principle of pari delicto.

It is well settled that as to the public or third persons, one of two parties may be held primarily responsible, without diminishing the obligations of the other, or impairing the right of action over against him. The facts from which the cases in 2 Black, and 4 Wallace, just referred to, arose, were, that one Robbins having wrongfully left uncovered, an exeavation in the sidewalk next his lot, a certain Woodbury, in passing along the street fell into it and was injured. For this injury he brought suit against the City of Chicago, and recovered a judgment, which the city was forced to pay.' The city thereupon brought suit against Robbins, to recover from him the sum it had so paid. The Court say, that although a municipal corporation, having the exclusive care and control of the streets, is obliged to see they are kept safe for the passage of persons and property, and is primarily liable to one who has been injured in consequence of default in this respect, the corporation has a clear remedy over against the party who has so used the street as to produce the injury.

The general rule of law relating to the defence of pari delicto is, that where two parties participate in the commission of a criminal act, and one party suffers damage thereby, he is not entitled to indemnity or contribution from the other party. But it is not every case even of particeps criminis, or of actual co-operation in the offence, in which a party is precluded from recovering of his co-delinquent. This is illustrated in the well-known case of Williams vs. Hedley, 8 East, 378, which was an action for money had and received, brought to recover the sum of £965, as having been unduly obtained by the defendant from the plaintiff, under an agreement to compromise a qui tarn action for penalties of usury, brought by the defendant against the plaintiff. There the plaintiff’s action was sustained, although the rule is recognized as applying when “ the act is in itself immoral or a violation of the general laws of public policy.”

A later case in this country exactly in point, is that of Inhabitants of Lowell vs. Boston and Lowell R. R. Corporation, 23 Pickering, 24, a leading authority in Massachusetts, on the doctrine of pari delicto, in connection with actions like the present. In that case, from the similarity of the grounds of defence to those in this, the Court passes upon most of the questions raised here. The declaration sets forth in substance, that the plaintiffs were bound to keep in repair a certain highway; that the defendants while having the right to use that highway, for the purpose of removing stone and rubbish from the deep-cut, made for the passage of their railroad, removed certain barriers which had been placed across the highway, to protect travellers from falling into the deep-cut, and neglected to replace the same ; that in consequence thereof, two persons named Currier and Smith, while driving along such highway, were precipitated in the deep-cut and greatly injured ; and that by reason thereof, those persons brought their actions, and recovered large sums of money against the plaintiffs, which plaintiffs were compelled to pay, together with witness fees, counsel fees and other expenses attending the defence of such actions, amounting in the whole to more than $8000.

The Court expressly overrules the defence of pari delicto there taken, and sustains the city’s right of action over against the railroad company.

In the course of its opinion, the Court announces : “The general rule of law is, that where two parties participate in the commission of a criminal act, and one party suffers damage thereby, he is not entitled to indemnity or contribution from the other party. * * * The rule is in pari delicto potior est conditio defendentis. If the parties are not equally criminal, the principal delinquent may he held responsible for damages incurred by their joint offence. In respect to offences in which is involved any moral delinquency or turpitude, all parties are deemed equally guilty, and Courts will not inquire into their relative guilt. But where the offence is merely malum prohibitum, and is in no respect immoral, it is not against the policy of the law to inquire into the relative delinquency of the parties, and to administer justice' between them, although both parties are wrong-doers.” And after reviewing a number of authorities in which this application of the doctrine is adopted, the opinion proceeds : “This distinction is manifest in the case under consideration. The defendants’ agent who had the superintendence of the works, was the first and principal wrong-doer. It was his duty to see to it, that the barriers were put up when the works were left at night; his omission to do it was gross negligence, and for this the defendants were clearly responsible to the parties injured.' In this negligence of the defendants’ agent, the plaintiffs had no participation. Their subsequent negligence was rather constructive and actual. * * * If the defendants had been prosecuted instead of the town, they must have been held liable for damages, and from this liability they have been relieved by the plaintiffs. It cannot be controverted therefore, that the plaintiffs’ claim is founded in manifest equity. The defendants are bound in justice to indemnify them so far as they have been relieved from a legal liability, and the policy of the law does not in the present instance interfere with the claim of justice. The circumstances of this case distinguish it from those cases, where both parties are in pari delicto, and one of them having paid the whole damages, sues the other for contribution.”

A common instance in which a party by operation of law is treated as a wrong-doer, and held primarily responsible to the injured party, although not .the actual trespasser, is that of towns or cities whoso streets are rendered dangerous by railway corporations in constructing their roads, or by their own citizens in the course of erecting buildings or inaking other improvements. While the decisions are uniform that public necessity, and the nature of their obligations, require that municipal corporations should he held liable for the safety of their thoroughfares, the doctrine of pari delicto, though frequently invoked against them, has .never been applied because of their constructive default when they have sought re-imhursement from the actual authors of the trespass, or nuisance which has caused them to be sued. From among numerous cases to this effect we may cite as explicitly in point, the cases in 2 Black., 4 Wallace and 23 Pick., already quoted, and those of Portland vs. Richardson, 54 Me., 46; Portland vs. Atlantic and, St. Lawrence R. R. Co., 66 Me., 486 ; Boston vs. Worthington, et al., 10 Gray, 496 ; Milford vs. Holbrook, 9 Allen, 17.

In the case in Gray the city recovered the amount of a judgment paid by it, because of injuries received in consequence of the proprietor of a cellar-way having neglected to protect it by a railing, as required by an Ordinance of the city, although the Ordinance bad been disregarded for twenty years. And in the case in Allen it was expressly ruled that the town of Milford in a similar action could not bo deemed in pari delido with one of its inhabitants, who bad allowed his awning to fall through neglect and injure a passer-by. Hoab, J., remarking, in the delivery of the opinion, “the only fault or negligence which could he imputed to the town on the facts shown, was a failure to remedy a nuisance which the defendant had caused. This is no bar to their claim for indemnity.”

The case now before ns comes directly within the scope of these decisions. The appellee, under the evidence in this cause, cannot be charged with more than a constructive default. It is not even in proof that the defect in the bridge was known to the Commissioners, or that it was plainly obvious or of long standing. The defence of pari delicto is clearly not applicable in this case.

We deem it pertinent here to observe, from the course of the argument, that had the Commissioners known of the defect in the bridge, and the Canal Company, after clemand, had failed to repair it, the former would have had the right to do so, and to resort to the company for indemnity for the necessary outlay. And it is proper that we should say, further, that the party injured could have sued the Canal Company, instead of the present appellee, if he had elected so to do. The remedy against the Commissioners is cumulative; and it is well settled that a party injured may if he see fit, proceed directly against the party actually guilty of the tort, and against whom an action over for indemnity will lie.

In proceeding to consider how far the Company was concluded by the judgment obtained by Eyler against the Commissioners, it is proper to dispose of the objection made to the sufficiency of .the notice to the appellant of the pendency of the suit in which it was recovered.

The authorities clearly establish, most of those already cited going to that point, that the form of the notification to a party whose default has caused the institution of the suit,-and from whom it is intended to seek indemnity, to appear in and- defend the same, is not material. It is sufficient if he is substantially apprised of the nature of the proceeding and is afforded opportunity to make his defence. . 1

The proof shows that the president of the Canal Company was distinctly notified, both verbally and in writing of Eyler’s suit, and that the appellant through two of its directors and its standing counsel appeared and took part in the management of the case, the authority of the latter being distinctly recognized by the Company’s compensating him for his professional attention.

In the light of these facts it is unnecessary to define what kind of notice would have been required to bind the appellant had it failed to attend the trial, or, in that event, to what extent it would have been concluded by the judgment. The fact being that the Company did actually participate in the trial and became in effect a party to the suit, and made as full defence, both on the law and the merits as if the action had been brought directly against itself’, we consider that it is bound by the judgment that was rendered.

In this view we are supported by the expressions of the Supreme Court in 4 Wallace, 612, in passing upon the same legal question. They say, “ Conclusive effect of judgments respecting the same cause of action and between the same parties rests upon the just and expedient axiom that it is for the interest of the community that a limit should be opposed to the continuance of litigation, and that the same cause of action should not be brought twice to a final determination.

“ Parties in that connection include all who are directly interested in the subject-matter, and who had a right to make defence, control the proceedings, examine and cross-examine witnesses and appeal from the judgment. Persons not having those rights substantially are regarded as strangers to the cause, but all who are interested in the suit and have knowledge of its pendency, and who refuse or neglect to appear and avail themselves of those rights are equally concluded by them. See also 3 Wallace, 18 ; 2 Black., 418; 2 Taylor on Evi., sec. 497; 1 Greenleaf on Evi., 12 Ed., p. 559.

The only remaining question presented in the record, not disposed of in the views above expressed, is whether the appellant can be held liable for the amount of the counsel fee incurred by the Commissioners in defending the suit. As no point was made as to the reasonableness of the fee for the duties performed, and no objection was urged at the time to the employment of the counsel, whose services in fact enured to the b'enéfit of the Company, the simple inquiry presented is, whether in conducting a defence made necessary by the default of another who is answerable over, the services of an attorney are a natural and proper incident or consequence to such a proceeding. We cannot regard them in any other light. Practically, the ordinary citizen is incompetent' to conduct the trial of his case. Only such as are learned in the law can intelligently do this for him, and without their assistance he would be at a great and unfair disadvantage. The law itself regards attorneys as an essential aid in the administration of justice; and recognizes them as officers of the Court, with peculiar obligations as such, in order that suitors may have the full benefit of their acquirements, skill and training in the management of their causes. To be compelled to go to trial either without the assistance of counsel, or to bear the expense of employing one himself, would be a gross hardship upon a defendant who is sued upon a constructive liability, because of the actual default of another for whose benefit the defence is really conducted, and to whom the law declares it is equitable he should have recourse for indemnity.

In this view we are supported by the decision in a late case, Inhabitants of Westfield vs. Mayo, 122 Mass., 100, where the question of the allowance for counsel fees in a similar case was distinctly presented, with a copious citation of authorities and full argument.

It was an, action of tort to recover the amount of a judgment paid by the plaintiff to Mary J. Hanchett for injuries sustained by her upon a highway which the plaintiff was bound to keep in repair, through the negligence of the owner of a pile of bricks, and also $150, the expenses of the suit in which the judgment was recovered.

The Court expresses its conclusion in these words.: “ If a party is obliged to defend against the act of another against whom he has an action over, and defends solely and exclusively the act of another, and is compelled to defend no misfeasance of his own, he may notify such party of the pendency of the suit and may call upon him to defend it; if he fails to defend, then, if liable over, he is liable not only for the amount of the damages recovered, hut for all reasonable and necessary expenses incurred in such defence. * * * * In the present case the plaintiff was not compelled to incur the counsel fees by reason of any misfeasance or of any contract of liis own, but was made immediately liable by reason of the wrong-doing of the defendant. There seems, therefore, to be no ground in principle by which it should he precluded from recovering the expenses reasonably and properly incurred in consequence of the wrong-doing of the defendant.”

(Decided 21st July, 1881.)

If the point had been expressly presented and clearly set out and supported in the evidence, that part of the amount sued for outside of the judgment for damages, consisted of specific items of costs and expenses incurred in the first case, and that the defence was there conducted solely in behalf of the appellee without the knowledge of or opportunity to participate therein by the appellant, objection to the judgment appealed from to the extent of such items would have been valid. But we may fairly infer from the testimony of the witness, Mr. Cox, as it is set out in the record, that the company was made aware of the first trial; and so far as the statement accompanying the verdict of the jury informs us we are not advised that any costs were computed by them ; hut those incurred after the ease was remanded from the Court of Appeals. In the absence of proof to rebut these presumptions, the verdict and judgment are entitled to all intendments in their favor.

It follows from the conclusions we have announced, that the judgment below' must be affirmed.

Judgment affirmed.