Rounds v. Phillips

• Decision Date: 18 January 1934
• Docket Number: 103.
• Citation: 170 A. 532,166 Md. 151
• Parties: ROUNDS v. PHILLIPS ET AL.
• Court: Maryland Court of Appeals

170 A. 532

166 Md. 151

ROUNDS v. PHILLIPS ET AL.

No. 103.

Court of Appeals of Maryland

January 18, 1934

Appeal from Circuit Court, Wicomico County; Jno. R. Pattison, Joseph L. Bailey, and Robert F. Duer, Judges.

Action by Laura D. Rounds, administratrix of the estate of Robert Lee Rounds, deceased, against William H. Phillips, Sr., and another. From the action of the court in sustaining demurrers interposed by defendants, plaintiff appeals.

Reversed and new trial awarded.

Argued before BOND, C.J., and URNER, ADKINS, DIGGES, PARKE, and SLOAN, JJ.

F. W C. Webb and William W. Travers, both of Salisbury (Woodcock & Webb and Carroll E. Bounds, all of Salisbury, on the brief) for appellant.

Clarence W. Miles and Seymour O'Brien, both of Baltimore (Miles Bailey & Williams, of Salisbury, and Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellees.

DIGGES Judge.

The question for decision in this case is raised by an appeal from the action of the lower court in sustaining the demurrers interposed by the defendants (appellees) to the declaration and each count thereof. The appellant is the administratrix of Robert Lee Rounds (plaintiff below), and the appellees are William H. Phillips, Sr., and Bessie Phillips, his wife, the father and mother of William H. Phillips, Jr., deceased. The declaration contains two counts, which are identical, with the exception that the first count asks damages for the pain and suffering of the appellant's decedent, while the second count asks for recovery for damages done to appellant's decedent's truck and the contents thereof.

The first count of the declaration is as follows: "For that the said Robert Lee Rounds, unmarried, a resident and citizen of Wicomico County, Maryland, died in said County on the 13th day of April, 1933, intestate, and the said Laura D. Rounds mother of said deceased, thereafter regularly qualified, on or about the 18th day of April, 1933, in the Orphans' Court for said County as administratrix of the Estate of said deceased; and for that for a long time prior to the 5th day of February, 1932, and between said latter date and the 13th day of April, 1933, William H. Phillips, Jr., a minor, born on the 1st day of December, 1912, now deceased, was habitually negligent, reckless and incompetent in the operation of automobiles on the public highways of the State of Maryland and elsewhere, including excessive and dangerous rates of speed, and was either inherently incapable of comprehending the legal duty imposed upon him to operate automobiles on said public highways with reasonable care and caution or was contemptuous of that duty and of the rights of other travelers on said public highways, and that, as a result of his habitual negligence, recklessness and incompetence in the operation of automobiles as aforesaid, the said William H. Phillips, Jr., prior to the said 5th day of February, 1932, had seriously injured himself during his operation of automobiles, and had been frequently warned by the police of the State of Maryland and by others, including the defendants, to desist and refrain from his said habitually reckless, negligent and incompetent practices in the operation of automobiles, and had been, on or about the 20th day of February, 1930, convicted by S. King White, Justice of the Peace, Salisbury, Maryland, of operating an automobile on the public highways within said Wicomico County in excess of the speed limit provided in the Public General Laws of Maryland and had been fined the sum of $10.00 therefor, and had been, on or about the 30th day of January, 1932, convicted by the said S. King White, Justice of the Peace as aforesaid, of reckless driving of an automobile on the said public highways of said Wicomico County in violation of the Public General Laws of Maryland and had been fined $5.00 therefor, and had been, on or about the 4th day of May, 1932, convicted by said S. King White, Justice of the Peace as aforesaid, of operating the hereinafter mentioned Buick automobile on the public highways of said Wicomico County while he, William H. Phillips, Jr., was under the influence of liquor in violation of the said Public General Laws of Maryland and had been fined $100.00 therefor, and had experienced, on or about the 10th day of May, 1932, the revocation of his license as the operator or chauffeur of automobiles by the Commissioner of Motor Vehicles of Maryland because of the operation of said Buick automobile while under the influence of liquor as aforesaid, and had experienced, on or about the 10th day of May, 1932, the revocation or suspension of the license issued by said Commissioner of Motor Vehicles, as hereinafter set forth, for the operation of said Buick automobile as the result of the aforesaid revocation of his license as the operator or chauffeur of automobiles for the reasons aforesaid, and had procured, only after great difficulty, on or about the 4th day of November, 1932, reinstatement of license to him from the said Commissioner of Motor Vehicles as the operator or chauffeur of automobiles after having been compelled to file and establish with the said Commissioner of Motor Vehicles, upon the demand of the latter, so-called 'financial responsibility' in the form of a policy of insurance in the sum of $5,000.00, issued by Keystone Indemnity Company, now reputedly insolvent, for the financial benefit and protection of any persons, firms or corporations who or which might sustain damages as the result of any subsequent negligence, recklessness or incompetence of the said William H. Phillips, Jr., in the operation of automobiles, as a condition precedent thereto as provided in the Public General Laws of the State of Maryland; and for that on or about the 5th day of February, 1932, the defendant, William H. Phillips, Sr., father of said William H. Phillips; Jr., purchased the said Buick automobile, hereinbefore mentioned, and paid therefor from his own funds and, thereafter, on or about the 6th day of February, 1932, in conjunction with said William H. Phillips, Jr., suffered and permitted title to said Buick automobile to be registered in the office of the said Commissioner of Motor Vehicles and license for the operation thereof to be issued by said Commissioner of Motor Vehicles, both pursuant to the Public General Laws of Maryland, in the name of the said William H. Phillips, Jr., although the defendant, said William H. Phillips, Sr., knew or by the exercise of ordinary care and prudence should have known, at said time that the said William H. Phillips, Jr., was habitually negligent, reckless and incompetent in the operation of automobiles on the public highways of the State of Maryland and elsewhere including excessive and dangerous rates of speed, and was either inherently incapable of comprehending the legal duty imposed upon him to operate automobiles on said public highways with reasonable care and caution or was contemptuous of that duty and of the rights of other travelers on said public highways, as aforesaid, and also knew, or by the exercise of ordinary care and prudence should have known, of the occurrences hereinbefore set forth in the record and career of said William H. Phillips, Jr., as the operator or chauffeur of automobiles which had transpired prior thereto as aforesaid; and for that, on or about the 9th day of July, 1932, the defendants and said William H. Phillips, Jr., in order that the said Buick automobile might be licensed by the said Commissioner of Motor Vehicles for operation on the public highways of Maryland and elsewhere by the defendants and others, including said William H. Phillips, Jr., and as the result of the revocation or suspension, under the circumstances hereinbefore set forth, of the aforesaid license for the operation thereof theretofore issued as aforesaid, caused title to said Buick automobile, theretofore registered in the name of said William H. Phillips, Jr., as aforesaid, to be assigned and transferred to the defendant, Bessie Phillips, wife of the defendant, said William H. Phillips, Sr., and mother of the said William H. Phillips, Jr., and thereafter caused licenses for the operation thereof, as aforesaid, for the remainder of the year 1932 and for the year 1933 to be issued by said Commissioner of Motor Vehicles in the name of the defendant, said Bessie Phillips, and that title to said Buick automobile remained so registered and license therefor likewise remained in the name of the defendant, said Bessie Phillips, on the 13th day of April, 1933; and for that the defendants negligently, carelessly and imprudently furnished said William H. Phillips, Jr., with and negligently, carelessly and imprudently permitted and suffered the said William H. Phillips, Jr., to be in possession of and to use and operate said Buick automobile upon the said public highways of the State of Maryland and elsewhere whenever the said William H. Phillips, Jr., desired or chose so to do between the said 6th day of February, 1932, and the 13th day of April, 1933, excepting the period between the 10th day of May, 1932, and the 9th day of July, 1932, during which time said Buick automobile was unlicensed for operation as aforesaid, and at their own expense, negligently, carelessly, and imprudently furnished gasoline and oil therefor and kept the same in repair during said period, and also negligently, carelessly and imprudently assisted and abetted the said William H. Phillips, Jr., in obtaining reinstatement of license, on or about the 4th day of November, 1932, as the operator or chauffeur of automobiles as aforesaid, and in that connection negligently, carelessly and imprudently provided or caused to be provided the said insurance policy in the sum of $5,000.00 as aforesaid, the said William H. Phillips,...