Goldsworthy v. Maloy

• Citation: 119 A. 693,141 Md. 674
• Decision Date: 17 November 1922
• Docket Number: 29.
• Parties: GOLDSWORTHY et al. v. MALOY et al., Public Service Commission.
• Court: Court of Appeals of Maryland

119 A. 693

141 Md. 674

GOLDSWORTHY et al. v. MALOY et al., Public Service Commission.

No. 29.

Court of Appeals of Maryland

November 17, 1922

Appeal from Circuit Court, Allegany County, in Equity; Albert A Doub, Judge.

Suit for injunction by William M. Maloy and others, constituting the Public Service Commission of Maryland, against Vance Goldsworthy and another. From an order overruling demurrer to the petition, defendants appeal. Affirmed.

The contract referred to in the opinion is as follows:

"Exhibit Buckell Contract.

"(Filed August 29, 1921.)

"This agreement made this 27th day of June, 1921, by and between Vance Goldsworthy, of the first part, and George T. Buckell, of the second part, witnesseth:

"Whereas, the said party of the first part is the owner of a large motor truck suitable for carrying persons and merchandise and for the operation of which he has obtained from the commissioner of motor vehicles, a license permitting him to operate the said truck for hire, as provided by law, upon the roads of Maryland; and whereas, the said party of the second part desires to contract with the said party of the first part for the hire of the said truck:

"Now, therefore, this contract witnesseth that the said party of the first part does hereby hire the said truck unto the party of the second part for and during a period of two weeks from the date hereof and thereafter for a like period of two weeks from time to time until either of the parties shall give the other one week's notice of his desire to discontinue the same, for the purpose of transporting such persons as the said party of the second part shall desire, from Gilmore, Allegany county, Maryland, to Barton, Allegany county, Maryland, and from Barton to Gilmore, making each working day, one trip with the said truck each way. The said trip from Gilmore to Barton being made at such time in the day as to deliver those carried, at Barton, in time to engage in their daily occupation and the trip from Barton to Gilmore at such hour in the afternoon as will provide the means of leaving Barton at the termination of their regular day's work.

"The said party of the first part to carry any and all persons designated by the said party of the second part, to a number equal to the capacity of said truck and to be paid by the party of the second part in the manner as follows: At the end of each week the said party of the second part will pay the party of the first part the sum of $2.00 for every trip each way made during the said week in conformity with this agreement, and that an account shall be kept of the number of persons so conveyed on each trip whenever the number is in excess of fourteen and for all such number in excess of fourteen there shall be paid in addition to the aforesaid trip price, the sum of fifteen cents per person so in excess of fourteen, each trip.

"It being understood and agreed between the parties hereto that the said contract of hiring contemplates likewise the services of a driver who shall operate the said truck, to be furnished at the expense of the said party of the first part.

"Witness the hands and seals of the said parties hereto, the day and year first hereinbefore written. Vance Goldsworthy. [Seal.]

"George T. Buckell. [Seal.]

"__________, Witness."

Horace P. Whitworth, of Westernport, for appellants.

Joseph S. Goldsmith, of Baltimore, for appellees.

BOYD C.J.

William M. Maloy, J. Frank Harper, and Ezra B. Whitman, constituting the Public Service Commission of Maryland, filed a petition against the appellants under section 28 of chapter 180 of Acts of 1910, being section 440 of article 23 of the Code of 1912, in which they allege that the defendants are operating, or causing to be operated, a motor vehicle owned by Vance Goldsworthy, one of the defendants, in the public transportation to and fro of passengers for hire, over the state, state aided, or improved county roads between Gilmore and Barton, in Allegany county, without having obtained a permit from the said Public Service Commission, as required by section 1 of chapter 610, of Acts of 1916, as amended by section 1 of chapter 199, of the Acts of 1918. Section 189 of article 56, vol. 4 Code. With the petition was filed a copy of a contract between Goldsworthy and George T. Buckell, the other defendant, purporting to show the terms under which the motor vehicle hired was to be operated. By leave of court the petition was amended-the amended petition being the only one that appears in the record. The prayers in it are: (1) That the defendants be peremptorily restrained and enjoined by a preliminary injunction from operating or causing to be operated, pursuant to the terms of the contract referred to, or otherwise, one or more motor vehicles in the public transportation of passengers for hire between the points named without first having procured a permit to do so from the Public Service Commission; (2) that the preliminary injunction may in due course become and be made final and perpetual; and (3) for general relief.

In the docket entries it is shown that an answer was filed to the original petition and the same day a demurrer to it was filed. After the petition was amended, an answer to it was filed, which concluded as follows:

"Wherefore these defendants, having now fully answered the bill of complaint against them exhibited in this case, and having raised the question as to the existence of equity in said bill, pray that this case may be heard upon the bill and this answer, as upon demurrer, and that the said bill against them and each of them be dismissed with costs."

The demurrer to the original petition is not in the record, and the only reference to one to the amended petition is what is stated above. Although under the recent rules adopted by this court a defendant is entitled by answer to insist upon all matters of defense in law or equity to the merits of a bill of which he may be entitled to avail himself by demurrer, and, although rule 18 (111 A. xvi) provides that "every defense in point of law arising upon the face of the bill or petition *** which might heretofore have been made by demurrer or plea, shall be made by demurrer or by answer," etc., the form adopted in this answer is, to say the least, unusual, but no point has been made about it, and we understand that the intention of the parties and of the court was to treat what we have quoted as a demurrer. At the conclusion of the opinion of the court, it is said:

"So it must be held that the plaintiffs are entitled to the relief prayed for, and the demurrer is overruled. A preliminary injunction will be granted."

The order for appeal is simply to "enter an appeal to the Court of Appeals of Maryland in the above entitled case." As no preliminary injunction has been issued, and none had been ordered, so far as appears from the record, there could have been no appeal from the statement in the opinion, that it will be granted, and we have therefore assumed that the appeal was intended to be from the overruling of the demurrer, and we will so treat it.

The important question involved is whether there is sufficient in the petition to show that the defendants were required to obtain a permit from the Public Service Commission-that question also involving one as to whether they ought to be treated as common carriers.

A contract was entered into between the two defendants in reference to the hiring of the motor vehicle, and, as a copy of that was filed with the petition and relied on by the defendants, we will ask the reporter to insert it in his report of the case. Its terms are peculiar, to say the least. It would be difficult for any one reading it to escape the impression that there was some reason, beyond merely hiring the truck, for entering into it. The truck is suitable according to the contract, for carrying persons and merchandise, and Goldsworthy had obtained a license from the commissioner of motor vehicles permitting him to operate it for hire. By the contract, he...