Doughty v. Prettyman

• Decision Date: 16 February 1959
• Docket Number: No. 119,119
• Citation: 219 Md. 83,148 A.2d 438
• Parties: Jackie H. DOUGHTY, infant, by his next friend, Susie Doughty, v. Daniel T. PRETTYMAN, Administrator of the Estate of Marion Pope, deceased.
• Court: Maryland Court of Appeals

Page 83

219 Md. 83

148 A.2d 438

Jackie H. DOUGHTY, infant, by his next friend, Susie Doughty, v. Daniel T. PRETTYMAN, Administrator of the Estate of Marion Pope, deceased.

No. 119.

Court of Appeals of Maryland.

Feb. 16, 1959.

J. B. Randol Carroll, Baltimore (Hilary W. Gans, Baltimore, Thomas F. Johnson, Snow Hill, C. Lester Drummond and R. Norris Bloxom, Accomac, on the brief), for appellant.

William H. Price, Snow Hill (Robert D. Bartlett, Baltimore, on the brief), for appellee.

Before HENDERSON, HAMMOND PRESCOTT and HORNEY, JJ., and REUBEN OPPENHEIMER, J., specially assigned.

REUBEN OPPENHEIMER, J. (specially assigned).

The principal question involved in this appeal is whether the court below erred in holding on demurrer that the appellant's third amended declaration set up causes of action which did not accrue within three years before its filing. The original declaration was filed on February 29, 1952, and claimed damages for personal injuries sustained on or about March 29, 1951, by the infant appellant while riding in a motor truck owned by the appellee's decedent and operated by his agent, Johnson. The declaration contained two counts, as did all the amended declarations. The first count alleged that the accident was caused by Johnson's negligence in operating the truck; the second alleged that the accident was due to a defective condition of the truck which its owner knew or should have known existed.

Thereafter demurrers and demands for particulars and amended declarations and bills of particulars succeeded each other for a period of six years. In this spate of pleadings the following are relevant to the issue before us: On September 22, 1952, the appellee's decedent duly notified the appellant that pursuant to the Uniform Judicial Notice of Foreign Law Act (now Article 35, Sections 47-53, Code, 1957), the court would be asked to take judicial notice of Section 8-646.1 of the 1950 Code of Virginia. This Virginia statute, as amended at the time of the happening of the accident, read as follows:

'Motor vehicle accidents.--Section 8-646.1 Liability for death or injury to guest in motor vehicle. No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation and no personal representative of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the operation of such motor vehicle, unless such death or injury was caused or resulted from the gross negligence or willful and wanton disregard of the safety of the person or property of the person being so transported on the part of such owner or operator.'

On August 22, 1952, the appellant filed his first amended declaration, which contained an allegation in each count that the accident happened in the State of Virginia. On January 14, 1953, in his second amended declaration, the appellant alleged, in the first count, that Johnson was operating the truck in a grossly negligent and reckless manner. On July 7, 1955, the appellant reported the death of the original defendant and asked that Prettyman, the decedent's administrator, be named in his stead. On the same date, in an amendment to the second count of the second amended declaration, the appellant alleged that the original defendant, the owner of the truck, was grossly negligent in permitting it to be operated in a defective condition. On April 16, 1956, in a bill of particulars to the second amended declaration, the appellant alleged in both counts that the infant appellant was riding in the truck at the request of Johnson, the operator, and that in infant appellant expected and hoped to be compensated by the owner of the truck, the appellee's decedent. On December 10, 1956, the appellant filed a third amended declaration. Count one contained the additional allegation that at the time of the accident the infant appellant was riding as a guest passenger. By an interlineation made, with the Court's permission, on April 12, 1957, it was alleged in the second count that the infant appellant was a casual employee of the owner. The appellee filed a demurrer and pleas; his demurrer was overruled.

The appellee's fifth and sixth pleas to the amended third declaration alleged that the causes of action set forth in both counts of the declaration did not accrue within three years before the bringing of the suit. The appellant filed a replication alleging that the causes of action in both counts did accrue within three years; the appellee demurred to the appellant's replication, and the trial court sustained the demurrer without leave to amend. Judgment was thereupon rendered in favor of the appellee, with costs.

The appellant's replication to the appellee's fifth and sixth pleas put at issue the question of limitations raised by those pleas, and the trial court's ruling on the demurrer to the replication was based on that issue. Poe, Pleading, Section 674 (1925); Rule 556, Maryland Rules. If the third amended declaration set forth a new cause of action, the defense of limitations is available; if it did not, the period is to be determined with reference to the date of filing the original declaration. Cline v. Fountain Rock Lime and Brick Company, 214 Md. 251, 258, 134 A.2d 304. The pleadings make it clear that the accident happened in the State of Virginia. Questions of substantive law are therefore to be decided according to the law of that state, but procedural matters are governed by Maryland law. Tobin v. Hoffman, 202 Md. 382, 386, 96 A.2d 597; Restatement, Conflict of Laws, Section 592 (1934). Included in the procedural matters governed by the law of this state is the statute of limitations. Restatement, Conflict of Laws, Section 604 (1934). In this case, the applicable period of limitations is three years. Code (1957), Article 57, Section 1. (Although it is apparent on the face of the pleadings that the plaintiff was an infant when the cause of action arose, the effect, if any, of Article 57, Section 2, was not presented to, or decided by, the trial court and therefore is not before this Court on appeal. Rule 885, Maryland Rules.)

The appellant contends that the cause of action set forth in the first count of the original declaration and in all amendments thereof was the negligent operation of the motor truck, and that the cause of action in the alternate claim set forth in the second count of the original declaration and all amendments thereof was the fact that the front end of the motor truck owned by the appellee's decedent was defective, as he knew or should have known. He submits therefore that the causes of action relied on in the third amended declaration were not new but merely amplifications and perfections of the causes of action originally set forth.

The appellee contends that under the appellant's claim in the first count that the truck was negligently operated by the owner's agent, no cause of action was stated under the Virginia statute until it was alleged that the infant appellant was a guest passenger in the truck and that the negligence of the operator was gross in nature. If the infant appellant was an employee of the owner of the truck, the appellee claims that there could be no recovery under the Virginia law, whether the operator's negligence was simple or gross, because of the fellow-servant doctrine, citing LeSueur v. Ayres, 191 Va. 119, 60 S.E.2d 26. The gross negligence of the driver was alleged within the three year period from the date of the accident, but the allegation that the status of the infant appellant was that of a guest passenger was not within the period. As to the second count, the appellee points out that there was no allegation that the appellee's decedent was grossly negligent in permitting the alleged defective condition of the truck to exist until the second amended declaration was filed, more than three years after the cause of action arose, and that there was no allegation that the appellant was a casual employee until the third amended declaration over a year later. It is the appellee's position, therefore, that neither count of the declaration or any amendment alleged the essentials of a cause of action under the Virginia law within the three year period, and that the court below was correct in holding that each count of the third amended declaration was barred by limitations under Maryland law.

The issue of whether or not the amendment of an original pleading set up a new cause of action has been before this Court in a number of cases. The latest decision on the point is State for Use of Cavanaugh v. Arundel Park Corporation, 1959, 218 Md. 484, 147 A.2d 427. In that case, the original declaration was a death action for negligence arising out of a fire which occurred on January 29, 1956, at an oyster roast conducted by a religious corporation. The four defendants named in the declaration each filed special pleas that they were non-profit eleemosynary institutions and, consequently, immune from liability for damages for the alleged torts of their agents, servants and employees. On October 14, 1957, the plaintiffs filed a second amended declaration alleging that the defendants were insured and were estopped from pleading eleemosynary immunity pursuant to the Maryland statute, which is now Code (1957), Article 48A, Section 85. The defendants demurred to the second amended declaration on the ground that it constituted a new or a different cause of action and was hence barred by the death statute because it was not brought within eighteen months after the death. The trial court sustained the demurrer and gave judgment for costs in favor of the defendants. We reversed, holding that the amended declaration was only a different statement of the cause of action and did not constitute a new or different cause of action. In delivering the opinion of the Court, Judge Henders...