Albert v. State ex rel. Ryan

Stone, J.,

delivered the opinion of the Court.

This was an action brought by a minor for damages sustained by him by the death of his parents, who were drowned at a place called Tivoli, and whose death was caused, as he alleges, by the negligence of the defendant, the owner of the wharf.

Before we determine the law of this case, it > will be proper to dispose of one or two technical objections that have been raised against the proceedings.

One of the objections urged is that the suit should have been brought by the next friend of the infant equitable plaintiff.

This objection seems to be sufficiently answered by the terms of the statute under which this suit is brought, at least where the objection comes in the shape of a motion in arrest of judgment. The statute provides in a case like the present that the suit shall be brought in the name of the State for the use of the party aggrieved. This suit has been so brought, and certainly after verdict it is too^ late to urge the objection that the name of a next friend should have been inserted. The only object that could have been obtained by inserting the name of the next friend of the infant, was security for the costs to the defendant if the plaintiff failed in his suit. The next friend would have had no authority to receive the amount of the judgment, and his appearance in a case like this answers no good purpose except to be security for costs. But while that is undoubtedly so, we must not be understood to decide that it would he improper to insert the name of a prochein ami to the infant in a case like the present. In many instances it would be very desirable to do so. Especially in those cases where the infant was too young to make an affidavit for removal.

Another objection urged is that the infant could not-make the suggestion and affidavit for removal.

The infant in this case was upwards of fifteen years of age and would be presumed at that age to have under *333 standing and discretion sufficient to understand what a removal of his case meant, and to make the oath required. In the light of our present Constitution, the right of removal is regarded as a very valuable one. In asking for it, the infant did not waive any rights that he had, but merely asserted and demanded his legal right. What an adult prochein ami could certainly have done for him, an infant who had arrived at fifteen years of age could do for himself. It might present a different question if the equitable plaintiff was of such tender years, that no presumption could arise of sufficient intelligence to understand the nature of the right claimed or of an oath.

Another objection is that the affiant did not pursue in his suggestion for removal the exact words of the Constitution in this, that the suggestion was that “ he believed that he could not have a fair and impartial trial,” while the constitutional provision is that “he cannot have a fair and impartial trial.”

The difference is' altogether immaterial. The party making the suggestion is required to verify it by his affidavit. This affidavit is that the matters in the suggestion contained are true, “to the best of his (the affiant’s) knowledge and belief.”

Taking the suggestion in the exact words prescribed by the Constitution, and the affidavit together, and they mean nothing more than that the party swears that to the best of his knowledge and belief he cannot have a fair and impartial trial in the Court from which he desires the removal. The suggestion and affidavit in this case mean and assei’t precisely the same. In this case the word belief is inserted twice where once would have been sufficient, and is clearly only surplusage.

Another objection remains to he disposed of. The defendant has filed in the record certain special exceptions, as he terms them, to the Court’s instruction and to certain prayers of the plaintiff for want of legally sufficient evi *334 dence to support them. As these prayers were rejected by the Court, and the plaintiff has not appealed, these rejected prayers are not before this Court.

Hor can we notice these so-called special exceptions as applicable to the Court’s instruction, because they are not properly speaking exceptions at all. The fourth rule of the Court of Appeals, provides in the latter part of it as follows: “Nor shall any question arise in the Court of Appeals as to the insufficiency of evidence to support any instruction actually granted, unless it appear that such question was distinctly made to and decided by the Court below.”

The only way that a question can be made to appear to this Court, to have been made to and decided by the Court below, is by way of exception. By the uniform and continuous practice in this látate, a bill of exceptions must be signed and sealed by the Court below, before we can review it. In general the bill of exceptions itself must plainly show the point decided by the lower Court. We are particularly prohibited from examining the legal sufficiency of the evidence to support a granted prayer or -instruction by the rule just referred to, unless it distinctly appears that such question was made to and decided by the Court below. It can only be made so to appear to us by a certificate under the hand and seal of the Judge who tried the case below.

Butrin this case there is no exception, properly speaking, to the instruction of the Court for ivant of the legal sufficiency of the evidence to support it. There are papers filed in the case called special exceptions on that point, but they are not signed and sealed by the Court, but by the attorneys. From aught that appears in this record the legal sufficiency of the evidence may never have been brought to the attention of the Judge, who tried the case. A paper filed in a case by the attorney unsigned and unsealed by the Judge, cannot have the force and *335 effect of an exception, although, the parties may call it so. The special exception for want of evidence must he within the hill of exceptions and not out of it.

If these so-called special exceptions that are not certified to as hy the lower Court, have ever been considered by this Court, it was always in cases where no objection was urged against them. In the case at bar the objection is distinctly made and urged.

The correctness of the law of the Court’s instruction is open for review upon the exception taken to it by the defendant, but not the legal sufficiency of the evidence up.on which it was based.

The end and object of this fourth rule, and the Act of 1825, upon which it was founded, were to restrict this Court to the decision of the questions decided below. It was intended to prevent surprise, and consequent injustice in the Appellate Court.

Had the special exceptions of the defendant to the Court’s instruction for want of legally sufficient evidence, been included in the exception, they would have been before us. As they now stand, the correctness of the instruction upon that ground is hot before us, but its correctness as a legal proposition will be considered.

The defehdant’s counsel has argued with much force that there is no legally sufficient proof of the ownership of the wharf by the defendant. The proof of ownershin of this wharf by the defendant is vital to the case of the plaintiff, as he is charged in that capacity only. We may say here that because the defendant was the owner of “Sparrow point ” farm, it does not necessarily follow that he was the owner of the wharf. There are many summer resorts in the waters of this State, as well as farms, where th§ land owners are not the owners of the wharves attached. These latter are often built and owned by steamboat companies and others, and the proprietors of the land have no interest in them except as a means of *336 ingress and egress to and from the lands. The Act of 1862, has nothing to do with this case. The proprietor of the land bordering on the navigable waters has the right to make these improvements, but it is a right that he can sell or gi^e away.

But we are precluded from a decision on that question for the reason that it is not presented to us properly in the record. Nor do any of the prayers offered by the defendant raise the question of the legal sufficiency of evidence, except the fifth which was rejected. But this prayer is restricted to the question of negligence or wrongful act. But we are not prepared to say that the case should have been taken away from the jury, for that would have been the effect of granting the prayer.

In deciding the law of this case it will not be necessary to- refer to the prayers either of the plaintiff or defendant further than we have done, as they were all rejected and the Court’s own instruction was given. If that instruction covered the whole law of the case. When we say that all the prayers were rejected, we should except the fifth prayer of plaintiff, and sixth of defendant. The defendant does not of course' appeal from the granting of his own prayer, and we do not understand 'the defendant as making any serious contention against the plaintiff’s fifth prayer, and we may therefore confine ourselves to the Court’s instruction.

That instruction substantially laid down the law to be, and so instructed the jury, that if they found that the defendant was the owner of the wharf, and that he rented it out to a tenant, and that at the time of the renting, the wharf was unsafe, and defendant hneio, or by the exercise of reasonable diligence could have known, of its unsafe condition, and that the accident happened in consequence of such condition, the plaintiff was entitled to recover.

Of the correctness of the rule so laid down, provided the jury found the facts, we think there can be no reasonable *337 doubt. The law is very tersely laid down as far back as the case of Roswell vs. Prior, in 12 Modern R., 639, where the Court say : “ This action is well brought against the erector, for before his assignment over he was liable for all consequential damages; and it shall not be in his power to discharge himself by granting it over.” There are many cases to the same effect, but it will be sufficient for us to cite the case of Owings vs. Jones, 9 Md., 108 , where the Court adopt this rule laid , down in 56 E. C. L. R., 784:

“ Where the owner leases premises which are a nuisance, or must in the nature of things become so by their user, and receives rent, then, whether, in or out of possession he is liable.”

A wharf, furnishing the only mode of ingress and egress to a summer resort, where crowds were invited to come, if in an unsafe and dangerous condition is certainly a nuisance of the worst character. It will not do for the owner, knowing its condition, or having by the exercise of any reasonable care the means of knowning it, to rent it out and receive rent for it, but escape all liability when the crash comes. He who solicits and invites the public to his resorts, must have them in a reasonably safe condition, and not in a condition to risk the lives and limbs of his visitors.

This question has been much discussed in the Courts of New York. Swords vs. Edgar, 59 N. Y., 28 , was a case very much like the present. There the Court decided that if the owner of a pier had leased it, and at the time of the demise, and delivery of posession to the lessee, it was in an unsafe and defective condition, and afterwards while in the possession of the lessee, an injury happens to one lawfully on the pier, the lessor is liable. 'This decision has not been overruled in that State. The case of Edwards vs. N. Y. and H. R. R. Co., 98 N. Y., 245 , is very different from Swords vs. Edgar, and in commenting upon *338 the latter case the Court says, “It is one where liability was imposed upon the lessor of a public dock, upon the ground that he had suffered a nuisance in his dock before the demise, and he was held liable on that ground. And the ground of nuisance is the only one upon which that decision can stand. There are similar cases in New England and England. A dock is regarded as a species of public highway, and the owner who suffers a nuisance to he created and continued upon his dock, remains liable upon the ground of nuisance.” The case in 98 N. Y., was this: The defendant rented a hall for the purpose of giving in it a pedestrian exhibition. A gallery broke down during the exhibition and injured the plaintiff. The Court held that in the absence of evidence tending to show that the defendant knew, or had reason to suppose, that there was some defect in the gallery, or that it was of insufficient strength to hold the number of people who could be contained therein, or that it would be used in such a way as to endanger its security, the plaintiff could not recover. The gallery had been divided into boxes, which were filled with chairs and tables, and had been used for festivals, &c. But the lessee had removed the chairs and tables, and a turbulent crowd had filled the gallery, and in stamping and beating time to the music, they broke it down. There was no evidence whatever that the lessor knew, or could have known, that it was to be so used, and he was held not liable.

We cannot perceive any inconsistency in this case with Swords vs. Edgar. We have referred to them at some length because they were pressed in the argument.

But in any event, we think the case of Owings vs. Jones, 9 Md., 108 , a controlling authority, based as we think it is upon sound reason, and we think it may be held as well settled in this State, that where the owner of a wharf leases or rents it out, and at the time of such renting the wharf was in an unsafe condition for the use that the lessor knew *339 it was to be put, and that the owner knew or by the exercise of reasonable diligence could have known of its condition, and that one who was lawfully on the wharf, and was injured in consequence of its condition, that the owner is liable.

(Decided 4th January, 1887.)

This was substantially the instruction of the Court, and ,the judgment must be affirmed.

Judgment affirmed.