Wynkoop v. Mayor of Hagerstown

Offutt, J., delivered the opinion of the Court. This is an appeal from a judgment for the defendant on demurrer, entered by the Circuit Court for Allegany Oounty in an action on the case brought by Ross C. Wynkoop against the Mayor and Council of Hagerstown, for injuries inflicted upon him by an intoxicated and irresponsible man armed with a deadly weapon. The basis of the action is the alleged negligence or nonfeasance of the defendant in failing to prevent the person, by whom the plaintiff was injured, from being at large while he was in that condition, in the possession of a loaded pistol. The declaration contains three counts.

The first charges defendant with liability in failing to abate a public nuisance; the second with liability for creating a public nuisance ; and the third, with liability for failing to enforce an ordinance prohibiting the discharge of firearms within the corporate limits. The facts stated in the declaration, or appearing from public statutes and conceded by the demurrer, are these: The City of Hagerstown is a municipal corporation authorized to adopt and enforce ordinances “necessary for the good government of the town” and it is authorized to “prevent, remove and abate all nuisances or obstructions in or upon the streets” of the city. Acts of 1884, ch. 58, sec. 128. Its government is vested in a mayor and council, and the council is required to convene at least once in every month.

Ibid. The mayor is authorized to appoint a board of street commissioners (Ibid.; Acts 1924, ch. 260, sec. 139), and that board is empowered to appoint policemen for the city (Ibid., sec. 143e), to adopt rules and regulations for their control and management, and to dismiss or to discharge them (Acts 1927, ch. 355), but the mayor by and with the consent of the council is given .full ¹⁹⁷ control over that board and their orders to it are mandatory (Acts 1924, ch. 260). One member of the police force is to be designated as “chief” and another as “lieutenant.” The city is laid off in streets and alleys, it contains from thirty to thirty-eight thousand inhabitants, is compactly built, and there is much travel by vehicles and pedestrians over its streets and sidewalks. On December 28th, 1928, one Walter Lutman was residing with his family on Elizabeth Street, in Hagerstown, a few doors from a dwelling occupied by Ross 0.

Wynkoop, his wife and children. That street is near the center of the city, is heavily traveled at all hours of the day and night, and is compactly built up. On or about that date Lutman became intoxicated and irresponsible, and while in his home assaulted and beat his wife, and attempted to obtain a revolver which was on the premises with the avowed purpose of further injuring her. His son, Walter, a boy aged about fourteen years, secured the pistol, removed it from the premises, and telephoned the police station for a policeman.

In response to that call “Officer Brown,” a member of the city police force, came to the Lutman home, and was met in front of it by Mrs. Lutman and her son Walter. They turned the pistol over to him, and requested him to keep it “to avert disorder or injury to persons or property in said Hagerstown,” and Mrs. Lutman then entered her home. Hpon her entrance her husband again assaulted and beat her. Then “Officer Brown” entered and, in the exercise of a perverted discretion, against the protest of Mrs. Lutman and Walter, he left the revolver, which had been given him for safekeeping, on the premises and within the reach of Lutman, and then prudently retired.

Shortly before his departure Mrs. Lutman also left her home, went to the police station, and notified the lieutenant in charge of what had occurred, and of the danger to be anticipated from her husband. Shortly after the departure of “Officer Brown,” Lutman, intoxicated, drinking, and armed with the revolver furnished by “Officer Brown,” roamed the streets of Hagerstown, un ¹⁹⁸ molested and unhindered, and finally entered the premises of the plaintiff Wynkoop and shot him, inflicting upon him painful, dangerous, and disabling wounds. It is further alleged that there was in force at the time an ordinance making it unlawful to discharge a gun or other firearm within the city limits. The question in the case is whether upon these facts the appellant is entitled to recover from the Mayor and Council of Hagerstown compensation for the injuries he suffered at the hands of Lutman.

The rule almost universally recognized in common law countries is that there can be no recovery against a municipal corporation for injuries occasioned by its negligence or nonfeasance in the exercise of functions essentially governmental in character. McQuillen on Mun. Corp., sec. 2793; 43 C. J. “Municipal Corporations,” sec. 1701; 19 R. C. L. “Municipal Corporations ” secs. 382, 385, 386. But beginning with Baltimore v. Mamott, 9 Md. 160 , there has come to he recognized in this State a principle which has been characterized as a departure from that rule.

Consolidated Apartment House Co. v. Baltimore City, 131 Md. 523 ; Hagerstown v. Crowl, 128 Md. 556 ; Hagerstown v. Klotz, 93 Md. 437 ; Cochrane v. Frostburg, 81 Md. 54 ; Taylor v. Cumberland, 64 Md. 68 . That is; that where the municipality is authorized by the Legislature to abate nuisances, the authority carries with it the duty to exercise it, and where it either fails to adopt such ordinances as may be necessary to the reasonable performance of that duty, or to exercise reasonable diligenec in enforcing’ them when adopted, it will be answerable to any private individual injured as a result of its default. All of these cases dealt with some act, omission, or condition which rendered some public highway unsafe, and were predicated upon the proposition that, where a municipality is charged with the duty of maintaining its public highways in a safe condition for public travel, has the requisite power, and possesses or can obtain adequate means to perform that-duty, it will be answerable to one injured as a result of its failure to do so. It involves the theory that, in the performance of such a duty ¹⁹⁹ in. response to a legislative mandate, it is discharging a municipal as distinguished from a governmental function, and is acting in its corporate capacity and not as the agent of the State.

And while the establishment and maintenance of public highways by the State itself is generally regarded as a purely governmental function, they are not always so regarded when committed to a municipal corporation. For in such a case it has been held that, where a municipality is given the privilege of exercising a governmental duty ordinarily performed by the State, the benefit, resulting from the grant creates a liability for failure to properly exercise the power. (19 R. C. L. “Municipal Corporations,” sec. 392; Mayor etc. of Lyme Regis v. Henley [H. L. Error from K. B. 1834], 2 Cl. & Fin. 331, 1 E. R. C. 619, 821; 43 C. J. “Municipal Corporations ” sec. 1755), which inures to the benefit of any one specially damaged by such failure. So it has been widely held that municipalities invested with the power and charged with the duty of keeping highways in a safe condition are responsible to persons injured by their failure to perform that duty.

And we do not understand that the cases in which the question is considered, of which Taylor v. Cumberland, 64 Md. 63 , is typical, go any further than that. In all those cases the claim was for injuries occasioned by the unsafe condition of public ways. In Taylor v. Cumberland, supra, the city permitted a certain street- and its adjacent sidewalks to be covered with ice and snow, and to be used as a slide or course for coasting to the peril of persons lawfully on the street; in Hagerstown v. Klotz, 93 Md. 437 , the City of Hagerstown failed to enforce an ordinance forbidding bicycling at an immoderate speed on its streets; in Cochrane v. Frostbug, 81 Md. 54 , the Town of Frostburg permitted cows to run at large unattended upon its streets; in Hagerstown v. Crowl, 128 Md. 556 , the city authorized the alteration of a building abutting on a public street without requiring reasonable precautions for the protection of travelers passing along the adjacent sidewalk; and in Baltimore v. Marriott, supra, the City of Baltimore failed to pre ²⁰⁰ vent or remove an accumulation of ice on the footway along Eayette Street in that city. In holding the municipality liable in each of these cases for injuries to private persons caused by its failure to abate these