Carder v. Steiner

Hammond, J., delivered the opinion of the Court. Appellant sued the Warden of the Maryland House of Correction and a guard of that institution to recover damages he alleges he suffered while a prisoner, when the guard closed his cell door upon him in such a manner as to strike and injure him. A demurrer to the declaration was sustained. The declaration alleged that the Warden had the duty to appoint a guard only after a rigid investigation as to his fitness and qualifications for the post, that it was the duty of the guard not to close any door in the cell block until assured that all inmates were free and clear of the doors and that despite these duties, the Warden “maliciously, wilfully, negligently and without due care employed and retained” the guard, “knowing him to be an unfit and improper person to perform the duties of a guard,” and that the Warden in the same derelict manner supervised the guard.

The declaration continues by alleging that the guard “maliciously, wilfully, negligently and without due care closed the cell door” on the ²⁷⁴ prisoner “knowing full well that the plaintiff at the time was not free and clear of the said cell door and that said cell door would strike upon and against the plaintiff.” This Court held recently in Clark v. Perling, 220 Md. 109, 114, 115 , that the Superintendent of the Maryland State Reformatory for Males was “a public officer; that his duties in safely confining the deceased were public in character and quasi-judicial in nature, in that they involved the exercise of discretion; and that he is not liable for injuries inflicted by one of his prisoners upon another, at least, in the absence of an allegation of malice or evil purpose on his part, that he knew of some unusual danger to the party injured, or that he participated in inflicting the injury.” The holding was grounded on the rule of law that when the complaint is for failure by a state agent to perform at all, or properly, duties that call for the exercise of judgment and discretion “the text writers and the cases * * * seem to be in universal accord in holding that the public officer is immune from liability, at least, in the absence of a showing of malice.” It is agreed that the duties and obligations of the Warden in the present case are identical with those of the Superintendent in the Perling case and therefore, as that case held, they are continuing in nature, and call for the exercise of some portion of the sovereignty of the State, and the exercise of discretion. It follows that the Warden is not to be held liable to a prisoner unless there is a showing of evil purpose or malice on his part. The allegations that the Warden was derelict in the appointment of the guard are made meaningless by the provisions of the Merit System law of the State which control, and of which the Court takes judicial notice. Under Code (1957), Art. 64A, Sec. 2, guards at the Maryland House of Correction are specifically included in the classified service and their employment is made subject to all the provisions of Art. 64A.

Section 17 of that article charges the State Commissioner of Personnel with the duty of determining the fit ²⁷⁵ ness of applicants for positions as prison guards and of recommending a list of qualified persons to the Warden when a vacancy exists. The Warden must choose from a list submitted to him. The allegations that the Warden “maliciously, wilfully, negligently and without due care” employed, retained and supervised the guard knowing him to be unfit, are conclusions of the pleader without allegations of fact to support them. There are no allegations of facts which show evil purpose, ill will or malice.

Significantly lacking is the allegation the Warden participated in any way in the acts which injured appellant. The allegations made fail to state a cause of action against the Warden. Clark v. Ferling, supra; Martin v. Moore, 99 Md. 41, 48 ; Cocking v. Wade, 87 Md. 529 . The appellant contends that the guard’s duties are ministerial only and he is liable for negligence in their performance, without a showing of malice.

The guard counters by saying that he, like the Warden, is a public agent exercising discretion, and therefore is immune from suit unless evil purpose or malice on his part is shown, to the same extent as the Sheriff in Cocking v. Wade and the Superintendent in Clark v. Ferlingboth supra. On this premise he contends further that the allegations that he “maliciously, wilfully, negligently and without due care” closed the cell door on the prisoner are inconsistent (in that an act cannot be both malicious and wilful and merely negligent at the