Pa. R. Co. v. Reeley, No. 5.

• Court: Court of Appeals of Maryland
• Writing for the Court: PARKE, Judge
• Citation: 16 A.2d 904
• Docket Number: No. 5.
• Decision Date: 18 December 1940
• Parties: PENNSYLVANIA R. CO. v. REELEY.

16 A.2d 904

PENNSYLVANIA R. CO.
v.
REELEY.

No. 5.

Court of Appeals of Maryland.

Dec. 18, 1940.

16 A.2d 905

Appeal from Superior Court of Baltimore City; Samuel K. Dennis, Judge.

Proceeding under the Workmen's Compensation Act by Elva Mae Reeley, claimant, opposed by the Pennsylvania Railroad Company, employer and self-insurer. From an adverse judgment, the employer and self-insurer appeals, and the claimant moves to dismiss the appeal.

Motion to dismiss appeal denied and judgment reversed without a new trial.

Argued before BOND, C. J., and PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

Edward E. Hargest, Jr., and O. Bowie Duckett, Jr., both of Baltimore, for appellant.

Avrum K. Rifman, of Baltimore (Isaac Lobe Straus, of Baltimore, on the brief), for appellee.

PARKE, Judge.

The first question on this record is the motion to dismiss the appeal upon the ground that the appellant failed to have the bills of exceptions filed within the time limited by law. The judgment in this case was rendered on January 11th, 1940, and the appeal was entered on the

16 A.2d 906

following January 22nd. The record was received in this Court on April 12th, 1940, which is within the statutory period of three months allowed. Code (1939), Art. 5, § 6. The trial of the instant case was had in the Superior Court of Baltimore City and the procedure for the preparation and signing of the bills of exceptions is to be found in the Code of Public Local Laws of Maryland (1930), Article 4, title "Baltimore City," § 316; Charter of Baltimore City (1938), § 411, pp. 304, 305.

By the provisions of the statute mentioned the bills of exceptions might have been signed at any time within the period that any of the parties had the right to file an appeal from the rendition of the verdict by the jury or the findings of the court upon the issue of fact in the cause. Upon the filing of the order for appeal, the time for the signing is automatically extended until twenty days before the period within which it is required by the statute that the record shall be transmitted to the court of appeals, provided (1) that the party appealing or his counsel shall submit the bills of exceptions to the appellee, or his counsel, not less than thirty-five days prior to the time that the record must be filed in the Court of Appeals, for the purpose of amendment or additions to the bills of exceptions, and (2) that the appellee or his counsel, within ten days after said bills of exceptions shall have been submitted to him, shall return said bills of exceptions to the appellant or his counsel with such amendments or additions as he may desire, and (3) if this should not be done, the bills of exceptions shall be signed by the court as originally prepared by the appellant or his counsel. (4) If the appellee or his counsel should return the bills of exceptions to the appellant or his counsel, with his amendments or additions, as hereinbefore stated, the bills of exceptions with such amendments or additions shall forthwith be presented to the judge before whom the case was tried, who shall settle the same within five days thereafter.

There is no controversy that there has not been a literal compliance with the terms of this statute. Nor is there any disagreement in respect of the focal dates. The record had to be transmitted to the appellate court on or before April 22, 1940. It was filed ten days earlier or April 12. The time for signing the bills of exceptions was, therefore, April 2, provided the appellant or his counsel had submitted the bills of exceptions to the appellee or his counsel not later than on or before March 18th. The bills of exceptions were not submitted to the appellee or her counsel until March 26, which was eight days in default. A literal compliance with the provisions of the statute was, therefore, obviously impossible. The appellee was thereupon put to her election whether to accept or to refuse the submission. She chose to accept and thereby became estopped to raise the point of the appellant's delay. Her choice carried all its necessary and obvious implications. When the appellee made this election it was with the knowledge that the delay of eight days had caused it to become impossible for the appellant to have the bills of exceptions signed within the successive periods of time allotted by the terms of the statute.

The submission and acceptance on March 26 by the appellee of the bills of exceptions for the purpose of amendments or additions, and the necessity for their return to the appellant or its counsel, with such amendments or additions as may be desired, by the appellee, within ten days thereafter would, if the appellee should take the full allowance of ten days, extend the time for their return to April 5th which is three days beyond the date when the bills of exceptions should have been signed and which, moreover, excluded the five days assigned for the judge before whom the case was tried to consider and settle the proposed amendments or additions to the bills of exceptions. The appellee had no power to lessen the period of five days assigned by the statute to the court. She, consequently, realized that the only way the bills of exceptions could be signed within the statutory period prescribed was by the voluntary shortening by her of the period of ten days for revision and returning the bills of exceptions, with the proposed amendments and additions desired, on or before March 28. Instead of employing the only means of having the bills of exceptions signed in time, the appellee consumed the full period of ten days and returned the bills of exceptions with the desired changes on April 5th. The appellee asserts that the full period of ten days was required because of the many modifications and additions to the bills of exceptions as prepared by

16 A.2d 907

the appellant. The appellee, however, had the original bills of exceptions when the election was made, and, so, was then aware of their content. It follows that by her election the appellee surrendered the consequences of the appellant's initial delay when cognizant of the full effect of her act. In reliance of this election and the appellee's conduct in forthwith accepting, examining, correcting and re-stating the bills of exceptions, the appellant did not apply for any extension of time for the submission and the signing of the bills of exceptions until after the time for this had elapsed. United Rys. & Electric Co. v. Dean, 117 Md. 686, 704, 705, 84 A. 75.

On April 6 the appellant filed its petition wherein it is stated that the bills of exceptions with amendments and additions were not returned until April 5, hence it was impossible for the bills of exceptions to be signed within the period named by the statute. The petition prayed for an order granting an additional period of ten days for the submission to counsel and the signing by the court of the bills of exceptions. An answer was filed by the appellee which took the position that the provisions of the statute were mandatory and, therefore, the court could not grant an extension nor sign the bills of exceptions. The petition contained matters in explanation and extenuation of the delay and the answer denied them. Testimony was taken before the court, and the court was moved to pass an order on April 10th as of March 17th extending the time for submission of bills of exceptions to appellee's counsel to March 28 and the time for signing the bills of exceptions to April 12. On April 10 the court formally approved the bills of exceptions on this record. The appellee reserved an exception to the signing of the order and of the bills of exceptions.

In the view taken by this court, it is not necessary to analyze and comment on the testimony offered by the parties. It was sufficient to convince the judge at nisi prius that the action taken was required. The indisputable record of the course of the procedure establishes the election of the appellee to disregard the initial provision of the statute as to the time for the filing of the bills of exceptions and to proceed as if there had been no delay. After this election the appellee revised the bills of exceptions by modifications, change and additions and meanwhile retained the draft submitted by the appellant. Such independent and distinct conduct and effort were only reconcilable with the conclusion that the appellee had abandoned the objection to the signing of the bills of exceptions on the ground of the patent delay. The appellant was justified in this belief, and the appellee cannot now repudiate her election to the prejudice of the appellant which had relied and acted upon her indicated choice. It is true that when the appellee returned on April 5th the submitted bills of exceptions, along with the new draft of the bills which the appellee had prepared, she advised the appellant for the first time that an objection would be made to the signing of the bills by the court for the reason that the bills of exceptions had not been submitted until March 26. This delay in so advising the appellant effectually prevented the appellant from having the bills of exceptions filed within the time prescribed. Having chosen one alternative, the appellee may not, under the circumstances stated, later pursue the other alternative to the detriment of the appellant whose subsequent actions were governed by the belief that the appellee was accepting the bills of exceptions as having been timely submitted. Bower on Estoppel by Representation, § 249, pp. 233-241; Wright v. Bagnell and Sons, Ltd., [1900], 2 Q.B. 240, 244 C.A.

The argument advanced in refutation of this doctrine is that it does not apply because the periods of time fixed in the statute are not directory but mandatory. The statute deals with a matter of practice which is not easily accommodated to rigid regulation. A certain degree of adaptation according to exigent circumstances best comports with...