A MODERN CASE OF "DAMNUM SINE INIURIA."

"A person commits a tort, and renders himself liable to an action for damages, who commits some act not authorized by law, or who omits to do something which he ought to do by law, and by such act or omission either infringes some absolute right, to the uninterrupted enjoyment of which another is entitled, or cause to such other some subtantial loss of money, health or material comfort, beyond that suffered by the rest of the public. The two essential elements, therefore, necessary to sustain the action are (1) A wrongful act or omission of duty by the defendant; and (2) Damage or loss to the plaintiff in consequence of such act, or omission." The above is taken from the opinion of Chief Judge Burke rendered in the case of Acker, Merral & Condit Co. v. McGaw.2

In our modern jurisprudence it can hardly be imagined that there can be an injury caused by a failure or omission to do an act imposed upon a party by law, and yet no cause of action can be maintained by the injured party to recover damages for his injury. Although this would be directly opposed to the above ruling of the Court of Appeals, unjust and certainly not expected of our system of jurisprudence, nevertheless such is the case.

For an example of this, suppose the following events occur in the State of Maryland:

There is a heavy snow-fall in the City of Baltimore on Monday, and the snow by Tuesday morning has become hardened by pedestrians walking on it. Mr. Smith, who lives on Charles street, is notified Monday night to clean the snow from the pavement in front of his house, but fails to do so. Mr. Brown, while on his way to work Tuesday morning, slips on the snow in front of Mr. Smith's premises, and breaks his arm when he comes in contact with the ground.

Mr. Brown, feeling rather aggrieved over his injury, and also over the 1 Moak's Underhill on Torts, 4. 2106 Md. 536, 551.

shrinkage in his bank account due to doctor's bills and druggist's bills, pays a visit to an attorney and tells him the above recited facts.

With these facts placed before him, any attorney would say, on first blush, that a right of action certainly accrued in Mr. Brown for the injury sustained; the facts of the case certainly make a good cause of action according to the law as laid down in the Acker, Merral & Condit Co. v. McGaw. There was a duty imposed on Mr. Smith by law to clean the pavement abutting on his property, and he, having failed in that duty, ought to be made to respond in damages for the injury caused by his neglect.

But, if the attorney were to examine the Maryland authorities and the reports of the Maryland Court of Appeals on this proposition of law, he would learn, probably greatly to the loss and consequent sorrow of Mr. Brown (and possibly himself), that Mr. Brown has no right of action for the damages due to his injury against anyone who might possibly be responsible.

On looking up the statute law on the subject, the attorney would find the following: Article 25, section 76 of the Ordinances of the Mayor and City Council of Baltimore imposes a duty on the occupiers of houses abutting on public streets of removing all nuisances from the footpavements; if it be snow and ice, it must be removed within three hours after the snow has fallen; a penalty of two dollars is imposed, and one dollar extra for each and every day after notice has been received to remove. Section 744 of the Baltimore City Code (1906) of Laws makes the duty of the Board of Police Commissioners of Baltimore City to remove nuisances in the streets of the city and enforce the laws and ordinances of the municipality. That is all the statute law there is on the subject.

According to these statutes, there is a duty imposed on two: in the first instance, the occupier of the abutting property, and, secondly, on the Board of Police Commis

3 Supra.

sioners. The occupier of the abutting property in our case, Mr. Smith, ought to be made to respond in damages because "he omits to do something which he ought to do by law," and as a consequence of such omission Mr. Brown has been caused "some substantial loss of money, health or material comfort, beyond that suffered by the rest of the public."

But the attorney, on examining the Maryland reports, finds the following cases:

As early as 1870 the Court of Appeals of Maryland decided that the Board of Police Commissioners are not made authorities of the City of Baltimore by any provi sion of law. Although they exercise authority within the city, for public purposes and objects, and to aid in maintaining good order therein, they have not derived their power from the corporation, nor have they been made amenable to the city for the faithful discharge of their duties. This was decided in the case of Altvater v. The Mayor and City Council of Baltimore; it was also decided in that case, that since the city had no control over the Police Commissioners (the board having exclusive charge of the removal of the nuisance complained of), the city was not responsible for damages due to any nuisances.

This doctrine has been affirmed in numerous cases, and as late as 1912 in the case of Taxicab Co. v. The Mayor and City Council of Baltimore." In this case a contractor engaged in the repairing and altering of a building left some building materials in the street of the city at night, without a right light, in violation of an ordinance of the Mayor and City Council of Baltimore, in consequence of which a taxicab of the plaintiff was greatly damaged, and it was held that the city was not liable, affirming the law as laid down in the Altvater case.

If the city is not liable, then, as there is a duty imposed by law on the Board of Police Commissioners to see that

431 Md. 462.

5 118 Md. 359.

the streets are kept clear and free of nuisances (in our case, ice), the board ought to be made liable for any injury due to their neglect of duty in not having such nuisances removed. This was tried in 1878, in the case of Brotherton v. The Board of Police Commissioners of the City of Baltimore." Brotherton sued the board to recover damages for injuries sustained by him from falling on ice and snow which had been allowed to accumulate on one of the public streets in the city, and which the plaintiff alleged it was the duty of the commissioners to have removed. The Court in that case said that the Board of Police Commissioners of Baltimore City was an official body created by the State for the purpose of administering police duty in the city only, but had no existence as a body corporate, and consequently could not be sued in that capacity.

We have already seen that the Board of Police Commissioners of Baltimore City cannot be held liable because they cannot be sued as a corporation; and also that the city is not amenable to suit in such a case, because it has no control over the board, which is a State agency.

Someone certainly ought to be made liable for this injury? Why not sue the occupier of the abutting property? Is not a duty imposed upon him by law to remove the snow? Is he not subject to a fine if he fails to remove the snow? An action to recover damages for injury due to his neglect of duty ought certainly to lie against the occupier of the abutting property.

In 1874 the Court of Appeals of Maryland had before it the following facts in the case of Flynn v. The Canton Company of Baltimore. Evelyn Flynn, while walking with ordinary care, slipped and fell upon some ice covering the pavement of a public street in the City of Baltimore, in front of the premises occupied by The Canton Company,

€ 49 Md. 495.

7 40 Md. 312 (this decision was followed and upheld in 1911, in the

case of McCarthy v. Clark, 115 Md. 454).

which resulted in a broken arm. Snow having been allowed to accumulate on the pavement, was melted by the sun, and the water thus formed was frozen the night before the accident. Miss Flynn could not see the ice, because of the slight covering of snow which had fallen during the night before the accident. Suit was brought to recover damages for the injuries sustained in consequence of the fall.

The action was grounded on the neglect of The Canton Company to comply with an ordinance of the Mayor and City Council of Baltimore, which made it the duty of owners of property to clear away snow and ice from the pavements and sidewalks contiguous to their premises under penalty of two dollars for every neglect, beside the expense of clearing the same away; and it was alleged that it was the duty of the police commissioners to have the snow and ice removed from the pavements fronting the houses of those persons who should neglect to remove the same, at the expense of the city in the first place, to be afterwards recovered from the person or persons so neglecting to remove the snow and ice.

Judge Miller, in rendering the decision of the Court of Appeals, said:

"Here the nuisance, if such it be, was not caused or created by the act of the party sued. The ice, the occasion of the injury, was not on the property of the defendants, nor was it placed on the pavement through the slightest instrumentality or agency on their part. It was not even formed from water discharged or flowing from their premises. If from carelessness or negligence in the use or management of water, or water-pipes in their buildings or on the premises, the water from which the ice was formed, was suffered to escape or flow from their premises into the street, and over the pavement they would stand in a different position, because they would have participated in causing the nuisance or obstruction. But there is no such feature in this case. Upon the facts in the record before us, the ice on which the plaintiff fell was formed solely and exclusively by the action of the elements."

"But the question here is what is its scope and effect? (of the act). Does liability to a private action follow from neglect to perform the duty or service thus prescribed? In our judgment it does not. The whole design and effect of this ordinance was to secure the property application of