M.J. Grove Lime Co. of Frederick County v. Wolfenden

• Decision Date: 13 January 1937
• Docket Number: 47,48.
• Citation: 188 A. 794,171 Md. 299
• Parties: M. J. GROVE LIME CO. OF FREDERICK COUNTY v. WOLFENDEN (TWO CASES).
• Court: Maryland Court of Appeals

188 A. 794

171 Md. 299

M. J. GROVE LIME CO. OF FREDERICK COUNTY v. WOLFENDEN (TWO CASES).

Nos. 47, 48.

Court of Appeals of Maryland

January 13, 1937

Appeals from Superior Court of Baltimore City; Albert S. J. Owens Judge.

Actions by Dora Wolfenden and by James Wolfenden against the M. J Grove Lime Company of Frederick County. From adverse judgments; defendant appeals.

Judgments reversed.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, SHEHAN, and JOHNSON, JJ.

Walter L. Clark and Roszel C. Thomsen, both of Baltimore (Clater W Smith, of Baltimore, on the brief), for appellant.

Philander B. Briscoe, of Baltimore (Briscoe & Jones, of Baltimore, on the brief), for appellees.

SHEHAN Judge.

The M J. Grove Lime Company of Frederick County, a body corporate, appellant, was sued in the superior court of Baltimore city in two cases by Dora Wolfenden and James Wolfenden, respectively. These two appeals are contained in one record and are from judgments entered in that court. The suits were for personal injuries caused by a collision of an automobile in which the appellees were riding and a truck belonging to the appellant and operated by its servant. The accident occurred in Frederick county, at the intersection of Liberty road and the Gettysburg highway.

The plaintiffs were riding as passengers in the automobile operated by a Miss Schneider. Three points were urged by the appellant in the brief and in the argument as grounds for reversal. The first was lack of jurisdiction in the superior court of Baltimore city to try this case on the grounds that the defendant was a resident of Frederick county and did not carry on any regular business in Baltimore city. Second, there is no evidence in the case legally sufficient to entitle the plaintiff to recover, and prayers directing verdicts for the defendant in each case should have been granted. The third, improper action of the nisi prius court during the trial of the case.

These two cases were tried together. The facts presented in each case were the same, and the procedure was identical. This opinion relates to both of the cases in like measure and effect. When these suits were brought, the defendant, appellant, promptly filed a motion in each case to quash the writs of summons and to set aside the returns of the sheriff thereon and to enter judgments of non pros. These motions were overruled and the cases were then tried on their merits under general issue pleas, and from judgments in favor of the plaintiffs these appeals are taken.

We will first consider the ruling of the court in regard to these motions, testing the right of the appellees to sue in Baltimore city for injuries caused by an automobile collision occurring in Frederick county. The facts in this connection are not in controversy, and we have presented only a construction of the statute as it relates to the undisputed facts presented in the trial of the cases. The act of Assembly, article 75, § 157, Code, provides that: "No person shall be sued out of the county in which he resides until the sheriff or coroner of the county in which he resides shall have returned a non est on a summons issued in such county; provided, * * * that any person who resides in one county but carries on any regular business, or habitually engages in any avocation or employment in another county, may be sued in either county."

The M. J. Grove Lime Company of Frederick County, a Maryland corporation, is engaged in the sale of lime and stone throughout the state of Maryland and has its offices at Lime Kiln in Frederick county and owns two plants in that county for the manufacture or preparation of its product. A considerable part of its business seems to have been in Baltimore city, where it sells large quantities of lime and stone for municipal uses and also deals largely with the State Roads Commission. The transactions with the State Roads Commission consist, not only of selling its products to it which are distributed throughout the state of Maryland, but also in the construction of state roads in some Counties of the state.

According to the evidence, all of this work and sales were directed, operated, or undertaken through its offices at Lime Kiln.

E. R Willoughby sold large quantities of lime and stone on a commission basis, and these operations covered some counties on the Western Shore, and the Eastern Shore of Maryland, Delaware, and parts of New Jersey. He solicited wholesalers in Baltimore city. His authority was limited to soliciting business at certain prices fixed by the appellant. Sales were not consummated by him. Orders obtained were submitted to the office at Lime Kiln and there accepted or rejected. The stone and lime were delivered usually by rail, but occasionally by trucks. Deliveries in Baltimore were seldom made by truck. The billing of this merchandise was conducted at Lime Kiln and payments were made through that office, although Willoughby occasionally received payments. This only seems to have been casual, and only a few of such incidences occurred each year, and then largely for the convenience and at the request of purchasers. When these payments were received, if in cash, he sent his own check for the amount. If by check, it was forwarded to Lime Kiln. The defendant is not listed in the telephone directory of Baltimore city, but Willoughby's name, in promotion of his own business as a solicitor for the defendant, was listed in the city directory from the year 1928 to 1930, but this seems to have been done without the direction or knowledge of his principal, and Willoughby himself had nothing to do with the insertion of his name in the ...