Fitzjarrel v. Boyd

Decision Date25 June 1914
Docket Number5.
Citation91 A. 547,123 Md. 497
PartiesFITZJARREL v. BOYD.
CourtMaryland Court of Appeals

Appeal from Superior Court of Baltimore City; Chas. W. Heuisler Judge.

"To be officially reported."

Action by J. Cookman Boyd against Harry A. Fitzjarrel. From a judgment for plaintiff, defendant appeals. Affirmed.

Defendant's prayers 2 and 7 are as follows:

(2) The defendant prays the court to rule, as a matter of law, that it appears from the uncontradicted evidence in this case that the plaintiff does not intend to enforce the collection of any judgment against defendant, and it further appearing that it is not the object or purpose of this suit to have adjudicated by this court any rights as between the plaintiff and the defendant, and it being undisputed that the object and purpose of this suit is solely and entirely to determine and fix the liability on a corporation, which is not a party to this proceeding, that therefore this court has no jurisdiction over the subject-matter, and the verdict of the court shall be for the defendant. (Refused.)

(7) The defendant prays the court to rule, as a matter of law, that if it shall believe from the evidence that the plaintiff has brought this suit against the defendant with the purpose and object of attempting to fix the liability of some corporation not a party to this suit, and if the court shall find that there is no controversy between this plaintiff and this defendant with regard to the sum sued for, and that the plaintiff has no intention of making the defendant pay any verdict which may be rendered against him, then the subject-matter of this suit is beyond the jurisdiction of this court, and the verdict of the court shall be for the defendant. (Refused.) ATWalter L. Clark, of Baltimore, for appellant. Peter J. Campbell, of Baltimore, for appellee.

BRISCOE J.

This is an action brought by the appellee against the appellant to recover damages for injuries sustained while riding in the defendant's automobile, as his guest, caused by the alleged negligence of the defendant. The case was tried in the superior court of Baltimore city, before the court sitting as a jury, and, from a judgment in favor of the plaintiff for $1,750, the defendant has appealed.

The declaration contains but one count, and it is as follows:

That the defendant on or about the 16th day of October, 1912 was the owner of and operated an automobile in the city of Baltimore and in Howard county, Md. That this plaintiff, at the invitation of the defendant, entered the automobile for the purpose and with the intention of being carried therein to Laurel, Md. That while riding in the automobile, and while exercising due care and caution on his part, the same was caused to skid and strike against a telegraph pole and overturn, and this plaintiff was thereby thrown from the automobile, his left arm was broken between the shoulder and elbow, his left ankle was sprained, his head was severely cut, his left forearm was badly bruised, he received severe bruises and contusions all over his body, he was severely injured in the left groin, he suffered from general shock to his system, and was further caused to suffer great physical pain and mental anguish. As a result thereof he was put to great cost for medical services, surgeon fees, and hospital charges; he was prevented for a long space of time from attending to his usual avocation, as an attorney at law, and thereby sustained great monetary loss, and other great serious, and permanent wrongs and injuries were by him thereby sustained. That the said automobile was caused to skid, strike said telegraph pole and overturn by reason of the recklessness, want of care, default and negligence of the defendant, his servant and employé, in attempting to pass a vehicle upon the road on which they were traveling at a high race of speed and against the protest of this plaintiff made to said defendant immediately before the happening thereof and in time to have avoided the same.

The record contains a single exception, and that is to the ruling of the court upon the defendant's prayers.

The plaintiff offered no prayers, but the defendant presented eight. Two of these were granted, and six were refused. The exception to the fifth and sixth prayers is waived by the defendant in his brief, so the questions for our consideration are presented by the rulings of the court upon the defendant's first, second, seventh, and eight prayers.

The defendant relies upon two grounds as a basis of defense: First, that the court has no jurisdiction, because the proceeding is amicable and pretended and only for the purpose of affecting the rights of strangers not parties to the suit; and, second, because there is no evidence of actionable negligence, on the part of the defendant.

The objections to the jurisdiction were raised by a motion to dismiss and by the defendant's second and seventh prayers, offered at the conclusion of the whole evidence. The motion was overruled, and the two prayers were refused. As these prayers will be set out by the reporter in his report of the case, and will be hereafter discussed by us, they need not be set out here in extenso.

It appears that, prior to the alleged accident, the Maryland Casualty Company had issued to the defendant a policy of automobile insurance, indemnifying him from and against loss on account of suits for personal injuries similar in character to the present suit, according to the conditions and provisions of the policy. The policy contains, among others, the following provisions:

"In consideration of one hundred and seventy-six dollars ($176.00), the Maryland Casualty Company, of Baltimore, herein called the company, agrees to indemnify Harry A. Fitzjarrel, of Baltimore,
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