Kelly v. Huber Baking Co.

• Decision Date: 29 February 1924
• Docket Number: 17.
• Citation: 125 A. 782,145 Md. 321
• Parties: KELLY v. HUBER BAKING CO.
• Court: Maryland Court of Appeals

125 A. 782

145 Md. 321

KELLY v. HUBER BAKING CO.

No. 17.

Court of Appeals of Maryland

February 29, 1924

Motion for Reargument Denied April 8, 1924.

Appeal from Circuit Court, Caroline County; Wm. H. Adkins and Lewin W. Wickes, Judges.

"To be officially reported."

Action by Evelyn S. Kelly against the Huber Baking Company. Judgment for defendant, and plaintiff appeals, defendant moving for a dismissal of appeal. Motion to dismiss overruled, judgment reversed, and case remanded for new trial.

Argued before THOMAS, URNER, OFFUTT, and DIGGES, JJ.

T. Alan Goldsborough, of Denton (Henry A. Warburton, Joshua Clayton and Omar D. Crothers, all of Elkton, on the brief), for appellant.

Henry R. Lewis, of Denton (Fred R. Owens, W. Brewster Deen, William J. Rickards, and J. Owen Knotts, all of Denton, on the brief), for appellee.

OFFUTT J.

On the 11th day of November, 1920, at about 2 o'clock in the afternoon, Oswald C. Kelly and Evelyn S. Kelly, his wife, who were on their way from their home at Otega, N. Y., to Florida, were traveling in a seven-passenger automobile driven by Mr. Kelly over the state road leading from Newark Del., to Elkton, Md., and had reached a point in Maryland about 2 miles north of Elkton, when they met a truck owned by the Huber Baking Company, and driven by one of its employees which collided with the automobile with sufficient force to overturn it, and after the collision Mrs. Kelly was found in an unconscious condition pinned beneath the automobile. She was at once taken to a hospital in Elkton, where upon an examination it was discovered that she had sustained severe and painful injuries from which she claims she has never fully recovered.

She claimed that the accident resulted from the negligence of the driver of the truck and asserted a claim against the Huber Baking Company, his employer, for compensation for the injuries she had suffered. That company denied any liability for the accident, and thereafter on March 31, 1922, she filed in the circuit court for Cecil county a declaration against it in which she charged that--

"The automobile in which the plaintiff was riding was run into and struck by an automobile truck of the defendant due to the negligent handling, running, and operating by said defendant, its servants, and agents, of said truck, that by reason thereof the automobile in which the plaintiff was being driven was turned over, throwing the plaintiff on and against the stone highway with great force, whereby the plaintiff's skull was fractured, her body, arms and legs injured and bruised, said injuries have caused great suffering and pain and the plaintiff is seriously and permanently injured."

The defendant filed the general issue plea to that declaration, and the case was tried before a jury in the circuit court for Caroline county to which it had been removed, and on April 15, 1922, the jury in the case returned a verdict for the defendant, and on the same day the plaintiff filed a motion for a new trial. On July 9, 1923 that motion was overruled and final judgment entered on the verdict, and from that judgment this appeal was taken.

The record contains seven exceptions. The first five relate to rulings upon questions of evidence, the sixth to the court's rulings on the prayers and the seventh to its action in excluding at the hearing of the motion for a new trial an affidavit of a member of the jury before whom the case was tried tending to impeach his verdict.

Before taking up those exceptions, however, it will be necessary to consider a motion to dismiss the appeal made in this court by the appellee. The ground for the motion is that the exceptions were not signed within the time limited by chapter 463, § 49E, Acts 1894, a Public Local Law of Caroline county, which requires all bills of exceptions in any cause pending in the circuit court for that county to be signed within 30 days from the rendition of the verdict of the jury or the finding of the court upon issues of fact, except where the time has been previously extended by order of court, or, where the parties agree that they be signed.

Unless the appellee has in some way waived its right to rely upon these provisions of that statute, the motion must prevail, for the record conclusively shows that the exceptions were not signed within 30 days from the day of the verdict, and that the court did not within that period extend the time for signing them, and the question finally comes to this: Did the appellee waive its right to object to the consideration of the exceptions in this court on the ground that they were not signed in accordance with the terms of the statute referred to?

The facts to be considered in connection with that question are not disputed, and are as follows: On June 19, 1922, long after the period of 30 days from the verdict in this case had expired, the court, upon the petition of the appellant extended the time for signing exceptions to September 1, 1922. On July 31st of that year the first six exceptions were signed, and the seventh exception relating to the court's ruling in excluding the affidavit of the juror previously referred to at the hearing of the motion for a new trial was signed on July 25, 1923, within 30 days from that hearing which occurred on July 9, 1923.

That exception contains the following statement of what transpired at the hearing of the motion for a new trial:

"At the hearing the plaintiff desired to discuss for the purposes of a new trial the court's rulings as embodied in the first, second, third, fourth, fifth and sixth exceptions in the bills of exceptions. Counsel for the defendants, however, objected to the correctness of the rulings upon which these exceptions were based being discussed by counsel or considered by the court unless these exceptions were waived for the purpose of the Court of Appeals. After argument the court decided that if counsel for the plaintiff desired to discuss these exceptions they would have to be waived; it was then agreed that the third and fifth exceptions should be waived for the purpose of the Court of Appeals, and the first, second, fourth and sixth exceptions be preserved for the purpose of the Court of Appeals, in accordance with which agreement, and ruling by the court confirming the agreement, the correctness of the rulings embodied in the third and fifth exceptions was discussed by counsel and considered by the court and none others."

After the case reached this court, the judges who presided at the trial below filed in it a certificate in which they stated:

"That the language used in the introduction or preamble to the plaintiff's seventh bill of exceptions, near the bottom of page 163 of the record filed in said case, was understood by us to mean the same as if it had been written as follows: 'The counsel for the plaintiff then elected that the third and fifth exceptions should be waived for the purpose of the Court of Appeals, and the first, second, fourth and sixth exceptions be preserved for the Court of Appeals, in accordance with which election and ruling by the court confirming the election the correctness of the rulings embodied in the third and fifth exceptions was discussed by counsel and considered by the court and none others.' We do further certify that the counsel for the defendant in no manner entered into or participated in the election aforesaid further than to insist upon the enforcement of the rule requiring such election, and entered into no agreement in relation thereto, the matter being wholly at the discretion and election of the counsel for the plaintiff."

From these statements of the trial court it is obvious that at the hearing of the motion for a new trial, one of the grounds of which was that the court had erred in its "ruling or instructions," counsel for the appellee moved the court to require the appellant to elect whether she would stand upon her exceptions at the hearing or whether she would try them in this court, and that as a result of its action the trial court required the appellant to elect whether she would have her exceptions heard by the trial court or by this court, and that because of that ruling for which the appellee had asked she elected to have them heard by this court instead of by the trial court. In other words, having successfully objected to having the exceptions reviewed by the trial court upon the implied assurance that they could be heard by this court and having gotten the full benefit of its action there the appellee now objects to the consideration of the exceptions in this court on the ground that they were not taken in time. While it may have been inadvertent and unconscious, nevertheless such conduct is not consistent with those principles of equity and fair dealing which should characterize transactions in courts of justice and cannot be approved by this court. At the time it objected to the consideration of these exceptions by the trial court, the appellee knew, or by the exercise of ordinary diligence should have known, that the exceptions were not signed within the time required by the statute and if it had intended to rely upon that objection in this court it should have so informed the trial court when it objected to the consideration of the exceptions as grounds for a new trial, for certainly that court would not have required the appellant to elect whether she would try her exceptions before it on that motion, or in this court, had it been advised that they were invalid, and that appellee would object to their consideration in this court for that reason. For these reasons in our opinion, the appellee by its counsel waived its right to object to the consideration of the first, second, fourth, and sixth exceptions in this court, and the motion to...