State, Use, Clark v. Ferling

Prescott, J., delivered the opinion of the Court. These are appeals by John W. Clark and Anna Marie Clark, surviving parents of William G. Clark, infant deceased, and John W. Clark, as administrator of the estate of said infant, from judgments entered in favor of Clement J. Ferling for costs following the sustaining of demurrers to the plaintiffs’ declarations. The questions raised in each appeal are identical; hence, the appeals may be considered as one. The declaration, after reciting that the Maryland State Reformatory for Males is “under the personal direction of the defendant Clement J. Ferling, Superintendent” and that the deceased was committed by the court “to the custody, care and supervision” of the defendant goes on to recite: “[T]hat the said Clement J. Ferling had a duty to administer and manage the Maryland State Reformatory for Males so as to protect the life, health and personal welfare of all inmates of the reformatory, but violated the said duty of care in that he knew, or, by the exercise of reasonable care; would have known, that in a certain basement dormitory there were confined a number of vicious, brutal and homicidal inmates, that the said inmates were there confined in whole or part because the infant, William G. Clark, had given testimony against them * * *; that * * * the said inmates felt great hatred and animosity for the infant, William G. Clark, and were determined to secure revenge against him at the first opportunity; that such animosity and hatred were greatly aggravated by the inmates’ confinement in an overcrowded and uncomfortable dormitory; that notwithstanding his knowledge of the facts aforesaid, the defendant, * * * without any warrant in reason or law, negligently confined, caused to be confined and suffered to be confined the said infant, * * * in the same dormitory with the aforesaid ¹¹² vicious, brutal and homicidal inmates without any means of protecting himself, without sufficient guards to protect the said infant, and without any means of escape by the said infant, and as a direct and proximate consequence of the gross negligence of the defendant, * * * the said vicious, brutal and homicidal inmates did set upon and brutally beat the said infant son of the plaintiffs, causing thereby his death sfs sjc Sjs ” The case is brought under Code (1957), Article 67; consequently, in order for the plaintiffs to recover, the death averred must have been caused by the “wrongful act, neglect or default,” such as would have entitled the deceased to have maintained an action and recover damages, had death not ensued.

We must, therefore, determine whether the party injured would have had a right of action under the circumstances named in the declaration, to recover damages from the defendant for the injuries which he received. It is contended for the defendant-appellee that the bringing of the action is merely an attempt by the appellants to lower the bar of governmental immunity which exists in favor of the State of Maryland and its agencies; that it has been held many times that suits, not properly maintainable against the state or its agencies, cannot be enforced circuitously against an executive officer who carries out governmental functions. The following cases are cited in support of this claim: Stanley v. Mellor, 168 Md. 465 , 178 A. 106 (1935) ; Williams v. Fitzhugh, 147 Md. 384 , 128 A. 137 (1925); Fisher & Carozza Bros. Co. v. Mackall, 138 Md. 586, 593 , 114 A. 580 (1921); State v. Rich, 126 Md. 643, 644 , 95 A. 956 (1915); Weddle v. Board of School Com’rs, 94 Md. 334 , 51 A. 289 (1902).

The appellants, however, argue that they are not suing the State or any of its agencies; that their suit is filed against the defendant as an individual for a negligent tort; and that he is amenable to such an action, although he was performing a public function at the time of its commission. Cf. 2 Shearman and Redfield, Negligence, (rev. ed.), Sec. 327; 2 Harper and James, The Law of Torts, Sec. 29.9 (1). ¹¹³ In the view that we take of the case, we do not reach this question; so we leave it open. The position of Superintendent of the Maryland State Reformatory for Males is authorized and directed by Code (1957), Article 27, Section 675, the incumbent’s duties are continuing in their nature and not occasional and call for the exercise of some portion of the sovereignty of the State; hence, there can be no doubt that the occupant thereof fills a public civil office and exercises important governmental functions in the performance of his duties. Buchholtz v. Hill, 178 Md. 280, 283 , 13 A. 2d 348 ; Pressman v. D’Alesandro, 211 Md. 50, 55 , 125 A. 2d 35 .

Nearly all of the textwriters and a great number of the cases attempt, with some variations, to classify the duties of public officers as they relate to tort liability or immunity into three general heads: political, judicial (including quasi-judicial) and ministerial. Harper and James, op. cit., Secs. 29.8, 29.9, 29.10; 2 Shearman and Redfield, op.