Elliott v. Larrimore

Decision Date11 January 1954
Docket NumberNo. 63,63
Citation203 Md. 526,101 A.2d 817
PartiesELLIOTT et ux. v. LARRIMORE et al.
CourtMaryland Court of Appeals

John G. Rouse, Jr., Annapolis (Rouse & Morton and Louis M. Strauss, Annapolis, on the brief), for appellants.

William Baxter, Baltimore (Daniel Eidman, III, Baltimore, and Eugene M. Childs, Annapolis, on the brief), for appellees.



This appeal is from the action of the trial court in denying a suggestion of removal by the original defendants in a tort action, a denial based on the refusal of a third party who had been impleaded to agree to the removal.

Mildred Larrimore, a passenger in a car owned by Harry Franklin Elliott, which struck a pole of the Consolidated Gas, Electric Light & Power Co. of Baltimore, an appellee, while being driven by his wife, Norma Elliott, sued the Elliotts, the appellants, in the Circuit Court for Anne Arundel County, alleging that she had sustained personal injuries which had been caused by their negligence. After leave of court had been obtained, the Elliotts filed a third-party complaint against the Gas Company, alleging that among other things, the Company had negligently erected an unlighted pole in such a manner that part of it had extended into the highway, as a result of which it was struck by the Elliotts' car and was the cause of the accident. Thereafter, the Elliotts filed a suggestion or removal, alleging, under oath, that they could not have a fair and impartial trial in the Circuit Court for Anne Arundel County, and praying the court to remove the case. The court passed an order of removal. The following day, the Gas Company moved that the Elliotts' suggestion of removal that the Hearing was held on this motion, and fifteen days after the original order, the Court entered a rescinding order, denying the request for removal. This appeal is from the last order. It is established that where the right is absolute an order granting or denying a suggestion of removal is an appealable order. Griffin v. Leslie, 20 Md. 15, 19; and McMillan v. State, 68 Md. 307, 12 A. 8.

The Constitution of Maryland, Section 8 of Article IV, provides that: '* * * upon suggestion in writing under oath of either of the parties to said proceedings, that such party cannot have a fair and impartial trial in the Court in which the same may be pending, * * *', the court shall order the record to be transmitted for trial in some other court having jurisdiction. Through the years, the cases have put a gloss on the apparently absolute right of removal. As a result, if there be more than one party on either side of the case, all of the plaintiffs or all of the defendants must join or acquiesce in the application for removal. Taxicab Co. of Balto. v. Emanuel, 125 Md. 246, 265, 93 A. 807; and Baltimore County Com'rs v. United Railways Co., 99 Md. 82, 87, 57 A. 675. Further, there can be but one removal a side, regardless of the number of parties on that side. State to Use of Carroll County Com'rs v. Gore, 32 Md. 498; State v. Baltimore & Ohio R. R. Co., 69 Md. 339, 348, 14 A. 685, 688.

The Gas Company was brought into the case under the provisions of Rule 4 of the General Rules of Practice and Procedure, Part 2, subd. III. This rule is a successor to Section 26 of Article 50 of the Code, 1951 Edition, which was passed as the procedural complement to the substantive right of contribution among tort-feasors given by Sections 20 to 25 of Article 50, although the provisions of the present rule differ in some particulars from those of Section 26. For a full discussion of the roots and growth of third-party practice, see the opinion in Northwestern Nat. Ins. Co. v. Samuel R. Rosoff Inc., 195 Md. 421, 425, et seq., 73 A.2d 461, written for the Court by Chief Judge Marbury. Under the rule as it now stands, a defendant, who claims that a person not a party to the action is or may be liable for all or part of the plaintiff's claim, may move to serve a summons and claim upon such person: '* * * as a third party.' The granting of the motion is in the discretion of the court. If leave is granted, the defendant causes copies of the third-party claim and the previous pleadings to be served on the new party, and so served, the third party makes his defenses in the claim against him and may assert counterclaims against the defendant or cross-claims against other third parties. The plaintiff or the third party may assert against the other any claim he has which arises out of the transaction or occurrence which is the subject matter of the plaintiff's claim against the defendant. To such claims, the other party asserts defenses, counterclaims, and cross-claims. The third party may proceed under the rule against any other person who: '* * * is or may be liable to him for all or part of any claim made against him in the action.' The court may make such orders as it thinks fit to regulate the conduct of the proceedings and to prevent injustice or unnecessary delay or expense. It may render one or more judgments appropriate to protect the rights of the parties.

It is obvious that the framers of the Constitution, in providing for removal did not contemplate that there were parties to an action who would not fit neatly into the category of either plaintiff or defendant. Nevertheless it is clear that one who has been impleaded under Rule 4 is a party to the action. The rule itself designates the newcomer as a party. The cases support this view of his status. For example, a next friend, although not technically a party to the case, has been held to be such for the purpose of the right of removal. Deford v. State, to Use of Keyser, 30 Md. 179, 196. An intervenor who has been admitted by order of Court is a party to the action. State ex rel. Lebeck v. Chavez, 45 New Mexico 161, 113 P.2d 179, 185. An impleaded third party is certainly an involuntary intervenor. It has been held explicitly that a third party defendant under the New York practice is a 'party'. Portnoy v. United Engineers & Constructors, Inc., 274 App.Div. 891, 82 N.Y.S.2d 464; and Reizen v. Pardes, 197 Misc. 384, 98 N.Y.S.2d 276.

There remains, then, the necessity to determine on which side of a case a third party is to be placed in relation to the right of removal. There are many indications that one who has been impleaded by a defendant is generally considered as substantially in the status of a co-defendant. Section 26 of Article 50 of the Code provided that the impleaded one be called 'the third-party defendant'. Rule 4 does not use the term but merely calls him a 'third party'. Under Section 26, the original plaintiff was directed to amend his pleadings to assert against the third-party defendant any claims he might have asserted if the new party had originally been sued as a defendant, and, consequently, the third-party defendant was bound by the adjudication of the liability of the original defendant to the plaintiff, as well as of his own liability to the plaintiff and original defendant. In considering the effect of Section 26, Judge Marbury, in Brotman v. McNamara, 181 Md. 224, 231, 29 A.2d 264, 268, in a dissenting opinion in which Chief Judge Bond joined, said this: 'There does not seem to be any doubt that under the joint tort-feasors law the intention is to have the jury pass upon the liabilities of all parties in one case. If the plaintiff does not put them all in, the defendant can do so, and in such case the same result will be reached as if the added parties had originally been made defendants. The fact that the plaintiff did not then amend his declaration cannot prejudice the rights of the defendant to have the others in.' (Emphasis supplied.) In Northwestern Nat. Ins. Co. v. Rosoff, supra [195 Md. 421, 73 A.2d 466], where the procedure was under rule 4, Judge Marbury said this for the Court: 'Where a third party is impleaded, he is in no worse situation than if he had been originally sued. Nothing final has been decided against him. He still has the opportunity to try his case, and if it goes against him, he can then appeal. No rights of the original plaintiff have been interfered with, because the result is only that he has another defendant in the case, against whom he may recover.' (Emphasis supplied.)

Rule 4, in addition to the provisions to which we have averted, uses language which makes it plain that its difference from Section 26 does not alter substantially the status of an impleaded party. Under the rule, the plaintiff is not required to plead against the third party, although he may do so. Yet, the conduct of the case and its outcome are, for all practical purposes, the same as if the third party was an original defendant. Paragraph (b) provides: 'The third party may also assert against the plaintiff on behalf of the defendant any defenses which the defendant has to the plaintiff's claim.' Paragraph (c) provides: 'The plaintiff may not assert against...

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    ...upon the order of the trial court granting it leave to intervene and designating it as a defendant. Rule 208 c 2; Elliott v. Larrimore, 203 Md. 526, 530, 101 A.2d 817 (1954). Since CMI was a defendant subject in regard to the election of jury trial to Rule 343, the question is whether there......
  • Parrott v. State
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    • September 1, 1984
    ...v. Leslie, supra. In addition to the holdings cited in Perkins, supra, dictum to the same effect appears in Elliott v. Larrimore, 203 Md. 526, 528, 101 A.2d 817, 818-19 (1954) and in Heslop v. State, 202 Md. 123, 126, 95 A.2d 880, 881 Immediate appealability on a constitutional rights analy......
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    ...and appealable under Dunningan v. Cobourn, 169 Md. 110, 113, 179 A. 512; McMillan v. State, 68 Md. 307, 308, 12 A. 8; Elliott v. Larrimore, 203 Md. 526, 528, 101 A.2d 817.' The power of a court to remove an action is to be distinguished from the discretion of a court exercised in determinin......
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