Deford v. State ex rel. Keyser

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. ¹⁹⁶ 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 the Superior Court; the first of which were withdrawn,.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 ¹⁹⁷ 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 ¹⁹⁸ 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 ¹⁹⁹ 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 ²⁰⁰ 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. ²⁰¹ 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 ²⁰² 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