Maryland Steel Co. v. Marney

Boyd, J., delivered the opinion of the Court. John Marney sued the appellant for injuries sustained by him while in the employ of that company, by reason, as he alleged, of the incompetency of some of his fellow-servants and the failure of the company to provide suitable and safe machinery and appliances. The injury resulted in the loss of both of his eyes and on the 12th of May, 1898, he recovered a verdict for $15,000 in the Court of Common Pleas of Baltimore City. The company made a motion for a new trial, which was overruled, and an appeal was then taken to this Court, resulting in the affirmance of the judgment, the case being reported in 88 Md. 482 .

A motion for a reargument was overruled and the company then superseded the judgment for six months, which expired on the nth of August, 1899 — one-third of the judgment having been in the meantime entered to the use of C. W. Kohl-man and William L. Marbury, who were the attorneys for Marney. On the 9th of August, the company made a motion in the Court of Common Pleas to strike out the judgment, and the same day filed a bill in the Circuit Court No. 2, of Baltimore City, to restrain the appellees from collecting it. Messrs. Kohlman and Marbury demurred to the petition to strike out the judgment and also to the bill of complaint, and the demurrer in each case was sustained ³⁶⁶ and the motion to strike out the judgment overruled, from which rulings these appeals were taken.

As has been held in a number of cases in this State, the power to set aside judgments upon motion for fraud, deceit, surprise or irregularity in obtaining them is a common law power incident to Courts of Record. During the term at which a judgment is rendered it remains subject to the control of the Court, but after the lapse of the term there must be the most clear and satisfactory proof of the fraud, mistake, surprise or other ground relied on, and the party seeking such relief must appear to have acted in good faith and with proper diligence. The Court exercises a general equity jurisdiction and considers all the facts and circumstances of the case. When, therefore, it is sought to vacate a judgment on the ground of fraud, the Court in which it was x-endered ordinarily has as much power to entertain and act upon the application as a Court of Equity has.

The main difficulty in the way of the Court of Common Pleas gx-anting the appellant full x-elief, if otherwise erltitled to it, that suggests itself to us, is the fact that the judgment was affirmed by this Court. The Constitution (Art. 4, sec. 15) provides that its judgments “ shall be final and conclusive,” and the Code authorizes a fieri facias or attachment to be issued on such judgment and provides for the sitpersedeas of it within two months after the rendition. It may therefore be questionable whether complete relief could be granted by the Court of Common Pleas under such circumstances, but as that question was not argued and we heard the two appeals together, it will not be necessary to do more than allude to the point, so that it may not be hereafter assumed that we conceded that the lower Court can vacate a judgment, on motion, after it has been affirmed and then superseded, as a judgment of this Court. But, passing that by without further comment, the motion is, in our opinion, lacking in some allegations that are material and necessary to authorize a Court to set aside a judgment, irrespective of the question whether the fraud alleged ³⁶⁷ is sufficient.

Mamey obtained his judgment by proof that a coemployee named Schmidt was incompetent, and that, notwithstanding such incompetency was known to the defendant, it continued him in its employ, thereby causing the injury complained of. The ground upon which the motion is based is that Schmidt, P. Clinton Johnson and John P. Hines entered into a conspiracy with the plaintiff to establish his case by false testimony, for which he ‘ ‘ was to compensate all three of said parties. Schmidt was to get one hundred dollars, Johnson was to get two hundred and fifty dollars, and Hines was also to get two hundred and fifty dollars.” It alleges that the incompetency of Schmidt was sworn to by Johnson and Hines, and the knowledge of it by the defendant was attempted to be proved by Hines. The only false testimony specifically pointed out was that Hines swore that Axel Sahlin, the superintendent of the defendant company, was present September 16th, 1895, the day of the accident, saw Schmidt at work at the cupola where the accident happened, noticed his unfitness for the place and spoke to Plines about it, remarking that he would burn himself and injure some of the other employees.

It then alleges that Sahlin was not present on that day, but was in Europe, having left Baltimore on August 30, 1895, and did not return until October nth, of that year. It undertakes to excuse its ignorance of the fact at the time of the trial, by saying that the suit was not brought until the spring of 1897; that Sahlin had left its employ on or about the first of January, 1897, and it did not discover until May, 1899, that he was not present, after which time it immediately instituted careful inquiries as to the relations between the plaintiff and those three parties, and after a careful and somewhat protracted investigation it ascertained the conspiracy between them. It does not, however, in the motion deny either that Schmidt was incompetent or, if he was, that the defendant knew it. Indeed, it does not in terms deny that Sahlin knew that he was incompetent, but only that he was not present at the time of the accident.

If ³⁶⁸ Sahlin was absent on that day, it may nevertheless be true that he did know that Schmidt was incompetent, as the testimony in the original case showed that he had been previously taken from the cupola because he was not competent, but was put there by Hines on the day of the accident by reason of the temporary absence of the regular man. But if Sahlin- never did know it,- and if it is conceded that the testimony of Hines in respect to Sahlin’s presence the day of the accident was deliberately false, there is no allegation- that the party who took Sahlin’s place, in his absence, was not aware of the incompetency of Schmidt. If Sahlin was absent, and no one was in his place, then according to -the testimony at the trial, the knowledge of Hines was notice to the company. He was foreman of that department, employed and discharged the men under him, but was himself under Sahlin when he was there.

There are, of coux-se, cases in which it is not necessary in a motion to- strike out a judgment, to show-that the defendant has a meritorious case. ■ If, for example, the ground be that the defendant was never summoned, and he had not appeared by counsel or in person, the Court would have no jurisdiction to enter up the judgment, and the mei'its of the case would, therefore, not be involved in such motion; but that is not so in a case of this character. In many States affidavits of meritoi-ious defenses are required to be filed in seeking to vacate judgments. 15 Ency. of Pl. and Pr., 277, etc. Whilst thex'e is no statute in this State requiring that, in a case such as this, especially as there has been a trial and the judgment sought to be vacated was obtained after verdict, the Court should not entertain a motion unless it sets up a meritorious defense, and it would not be justified in disturbing the judgment on pi'oof that cei-tain testimony was false and corimpt, without it being shown that the party had in point of fact been injured thei'eby. 1 Black on Judgments, sect. 347. If Schmidt was in fact incompetent, and notice of it was so brought to the defendant’s attention as to bind it, it should not be relieved ³⁶⁹ of the judgment merely because the particular proof of those facts was false. To adopt such a rule would not be giving judgments that force and effect they are entitled to.

The demurrer to the petition to strike out the judgment was therefore properly sustained, if for no other reason, because it does not show that the defendant has a meritorious defense and that the judgment is unjust as it stands. But the bill in equity does allege what we have just stated should have been in the motion, and as we could, if that was the only difficulty in the way of granting the motion, remand the cause with leave to amend, we will now determine whether the appellant has shown itself to be entitled to relief, regardless of that technical question. We will not stop to discuss the point, raised by the appellee, whether a party can make a motion to strike out a judgment in the Court where it is rendered and at the same time file a bill in equity to have it set aside. There may be cases where the aid of a Court of Equity is necessary to do full justice, although application has been made to strike out the original judgment.

Under the peculiar circumstances of this case, where there is a judgment in the Court below, which was affirmed in this Court and then superseded, a Court of Equity could undoubtedly afford more ample relief, if the appellant is entitled to it, than could be obtained in the Court of Common Pleas, especially if it be necessary to enjoin the holders of the judgment from enforcing it, as this bill seeks to do. We will therefore pass, on to the consideration of the bill without further reference to that question. It embodies in substance the allegations mhde in the motion, although it is fuller and corrects the omission we have just spoken of. With it the record in the original case is filed, including the pleadings, testimony and opinion of this Court.

The conditions under which Courts of Equity interfere with judgments of Courts of Law in this State, are not usually materially different from those under which the latter act on motions. The party seeking relief ³⁷⁰ must show that the fraud, or other ground relied on by him, is “unmixed with any fault or negligence in himself.” The declaration gave the appellant full and ample notice that the plaintiff relied, for his right to recover, on the neglect of the defendant to employ competent persons, and to provide safe and proper machinery for the work. The first count alleges that it did not exercise ordinary care in the selection of its employees, and the day the trial commenced a second count was added in which it was specifically alleged that some of the employees were unfit for the work of attending to the cupolas ; that the defendant knew of their unfitness and incompetency, but continued them in its employ, and the injury to the plaintiff was caused “ by the negligence and incompetency of one of said employees and by the improper and unsafe character of the machinery and appliances furnished.” It is not pretended that the plaintiff was not seriously and permanently injured, having lost the sight of both eyes, and the defendant was brought into Court to respond in damages for that injury, which could only be recovered on proof of the incompetency of one or more of its employees and the knowledge of the same by the defendant, or proof of its failure to furnish proper and safe machinery and appliances. There was no effort made to establish the latter, and the plaintiff’s case depended entirely upon the alleged incompetency of Schmidt and the defendant’s knowledge of it.

There could, therefore, not have been any surprise when the plaintiff undertook to establish those facts. Thomas J. Doyle, who was foreman of the laborers and riggers at the foundry of the defendant; when the accident happened and when the trial' took place, was present and saw the accident. He knew Schmidt, and, at least the day before he testified, he knew that he was working at Carr’s foundry in the city of Baltimore. Hines and Johnson were also employed in the same foundry, having afterwards left the defendant’s employ.

It is no excuse to say that they were no longer in its employ. Schmidt was just as much subject to the process of the ³⁷¹ Court out of the defendant’s employ as he was in it, yet he was not called as a witness by either party, and so far as the record informs us there was no reason why he could not have been summoned or his whereabouts ascertained in ample time for the trial if there had been ordinary diligence exercised. It would be difficult to believe that the defendant was so utterly regardless of its own interest, or the welfare of its employees, as not to inquire of some of its employees at the time of the injury, how' the accident happened, and Hines was the one it would have been most likely to have made inquiries of, as he -was in charge of that part of the work. If the defendant did not make such inquiries it was by reason of its own neglect, and, if it did make them, it is not pretended that it was misled by what Hines or any one else then said.

But the bill does not even show that the defendant made any effort to ascertain where Sahlin was or to have him at the trial. It does allege that he left its employ December 31st, 1896, and from that time down to some time in the month of May, 1899, “it had no communication with him and no opportunity to confer with him about this case,” but it is not alleged that it made any effort to do so, or to ascertain his whereabouts. If he was in charge of defendant’s works at the time of the accident, ordinary prudence in the preparation of the case for trial would have suggested the importamce of having him present, or at least procuring his testimony, if the defendant intended to deny the incompetency of its employees, or its knowledge of such incompetency. If he was temporarily absent at the time of the accident, it could have ascertained that fact by seeing or communicating with him, if it did not know it before, and it certainly must, or at least could have known who was in charge of its works when the accident happened.

If no one took Sahlin’s place during his absence, then Hines must have occupied such a position as to make notice to him of the incompetency of Schmidt notice to the company, for he employed and discharged the men and had charge of the ³⁷² work, subject only to Sahlin’s higher authority, so far as the record discloses. If some one took Sahlin’s place, then he ought to have been procured at the trial if the company proposed to make the