Davidson Transfer & Storage Co. v. Christian

• Citation: 197 Md. 392,79 A.2d 541
• Decision Date: 16 March 1951
• Docket Number: No. 112,112
• Court: Court of Appeals of Maryland
• Parties: DAVIDSON TRANSFER & STORAGE CO. et al. v. CHRISTIAN et al.

Page 392

197 Md. 392

79 A.2d 541

DAVIDSON TRANSFER & STORAGE CO. et al. v. CHRISTIAN et al.

No. 112.

Court of Appeals of Maryland.

March 16, 1951.

Ward B. Coe, Jr. and LeRoy W. Preston, Baltimore (Weinberg & Green, and Anderson & Barnes, all of Baltimore, on the brief), for appellants.

Talbot W. Banks, Baltimore (Clark, Thomsen & Smith, Baltimore, on the brief), for appellees.

Before MARBURY, Chief Judge, and DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

HENDERSON, Judge.

Delores M. Reeves, as widow of Robert M. Reeves under Lord Campbell's Act, Code, art. 67, § 1 et seq., and as his administratrix and in her individual capacity filed in the Baltimore City Court three suits, docketed as one case, against Christy Oehm, The Davidson Transfer and Storage Company, and James A. Christian and George O. Christian, individually and as copartners trading as Christian Brothers. She alleged in substance that she was injured and her husband was killed in a traffic accident in Baltimore County; that she and her husband were passengers in an automobile driven by Oehm which was in collision with a tractor-trailer 'owned, controlled, leased and operated' by the Christians and Davidson; that the accident was caused by the negligence of all the defendants. The Christians appeared specially and moved to quash the writ of summons on the ground that they did not reside in Baltimore City or 'carry on any regular business or habitually engage in any avocation or employment' there. The plaintiffs' answer denied this allegation, and testimony was taken upon that issue. The appeal is by Davidson and Oehm, the co-defendants, from an order of court granting the motion and entering a judgment of non pros in favor of the Christians. Although the plaintiff did not appeal, the right of the co-defendants to do so is not challenged. Koester Bakery Co. v. Poller, 187 Md. 324, 326, 50 A.2d 234. It is conceded that the appeal is not premature. State to Use of Bickel v. Pennsylvania Steel Co., 123 Md. 212, 91 A. 136. Cf. Northwest National Ins. Co. v. Rosoff, Md., 73 A.2d 461, 466.

The testimony shows that the two Christians reside in Baltimore County and own two tractor-trailers, which they keep at home and personally drive, hauling freight in interstate commerce under trip-lease agreements with common carriers. Their entire business consists in interstate hauling from the Baltimore metropolitan area to New York and other points. Christian Brothers average about three trips a week. 60% of their work was for Davidson, amounting to about two trips a week. They were working with Davidson 'steadily all along'. The other 40% of their work was for other trucking companies, most of whom were located in Baltimore City. Most of the loads were picked up at the Bethlehem Steel Company plant at Sparrows Point in Baltimore County. They had such a load on board when the accident occurred. About 25% of the time, or 'once or twice a week', the loads were picked up in Baltimore City. Most of their business was solicited by telephone calls from their home, or by personal visits with their equipment to the various carriers' terminals in Baltimore City. About 20% of the time the carriers telephoned the Christians at their home.

On the day before the accident James Christian came to the Davidson terminal in Baltimore City with his tractor-trailer, and inquired if there was a load for him. He was told that there was, and a lease was thereupon prepared and executed providing for the leasing of the equipment, with driver, for one trip from Baltimore to New York, the lessor to provide insurance coverage. In this instance, as in all others, the lessee inspected Christian's registration and insurance cards and the equipment, and affixed to the truck the Interstate Commerce Commission 'sticker'. Christian went to Sparrows Point, where he received a load of steel products. He took this load to his home where he spent the night. The accident occurred in Baltimore County the next day, after he had started for New York.

The controlling statute is Code 1947 Suppl., article 75, section 157, which provides in part: 'No person shall be sued out of the county in which he resides * * * 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 * * *. As used in this section the term 'county' includes 'Baltimore City".

This statute has been construed by this court in a number of cases, none of which is precisely in point. In Chappell v. Lacey, 1893, 77 Md. 172, 26 A. 499, 500, it was held that 'any regular business' need not be the principal business. In Gemundt v. Shipley, 98 Md. 657, 57 A. 12, it was held that a nonresident defendant who came to Baltimore...