State Ex Rel. Weddle v. Board of County School Commissioners

Briscoe, J., delivered the opinion of the Court The question raised by the demurrer to the plaintiff’s declaration in this case is one of more than ordinary importance. The equitable plaintiff is a citizen of Frederick County, and on the 15th day of March, 1900, brought a suit at law in the name of the State in the Circuit Court for that county against the Board of County School Commissioners of Frederick County, under Art. 67 of the Code, to recover damages for the death of an infant daughter while a pupil of one of the public schools of the county, and whose death is alleged to have been caused by the negligence of the defendant. The declaration substantially states that the defendant is a body politic and corporate under the laws of the State ot Maryland, and as such has general control and supervision ot the public schools and its property in Frederick County, and that it was its duty to keep this property in such condition as to be safe for the children attending the schools as pupils thereof; that the defendant was the owner of a certain lot ot ³⁴² ground and building there situate in said county, and conducted upon the lot a public school known as “the Blue Mountain Public School ” and had general supervision and control thereof; that on the 4th day of October, 1899, a single strand of wire was strung across the public school lot and firmly fastened upon trees growing thereon, and the wire was so strung and fastened at such a height above the ground as to be extremely dangerous to the pupils of the school when running and playing upon the lot; that the defendant wrongfully and negligently suffered and permitted the wire to be and remain upon the lot on the 4th of October, 1899, and a long time prior thereto. The declaration further avers that the daughter of the équitable plaintiff, on the 4th of October, 1899, while in attendance upon the public school, as a pupil and while running on the lot according to the habits of school children was knocked down and mortally injured by the wire aforesaid, which subsequently resulted in her death and for its alleged negligence in causing her death the plaintiff brings this suit.

The defendant demurred to this declaration, denying its liability in damages in this action, and from a judgment sustaining the demurrer, the plaintiff has appealed. The question, then, presented for our consideration is, whether under the law, the defendant can be held liable in this action. The appellant contends that the defendant’s liability arises under sec. 19, of Art. 77 of the Code, title Education, sub-title County School Commissioners, where the defendant is declared to be “a body politic and corporate” and is made “capable to sue and be sued,” and that the declaration that the corporate body should be capable to sue or be sued should be construed as imposing unqualified liability in this respect. Now it is well settled, we think, both upon principle and authority that at the common law, no action for tort could be maintained against a quasi corporation, and if the defendant is to be held liable in this case, it must be under the statute.

Duer v. Dashiell, 91 Md. 668 . In the case of City of Provi ³⁴³ dence v. Clapp, 17 Howard, 161 , the Supreme Court of the United States in passing upon a case where the suit was against the city of Providence to recover damages for an injury occasioned by an obstruction on the side-walk of one of its streets, said : “It is admitted that the defendants are not liable for the injury complained of at common law, but the plaintiff must bring the case within the statute to sustain the action.” In Hill v. Boston, 122 Mass. 346 , in which an action of tort was brought by a child who was attending a public school in a school house against the city of Boston for an injury suffered' by reason of the unsafe condition of a staircase in the school house, it is said ; although the English books contain numerous cases of indictments * * * for neglect to repair highways, &c., no instance has been referred to, in the frequent discussion of the subject in England and in this country, in which an English Court