Spencer v. Baltimore & O.R. Co.
| Decision Date | 21 April 1915 |
| Docket Number | 51. |
| Citation | 94 A. 660,126 Md. 194 |
| Parties | SPENCER et al. v. BALTIMORE & O. R. CO. et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Harford County; Wm. H. Harlan, Judge.
Action by P. M. Spencer and another, trading as P. M. Spencer & Co. against the Baltimore & Ohio Railroad Company and another. From a judgment for defendants, plaintiffs appeal. Affirmed.
Wilton Snowden, Jr., and Wm. H. Surratt, both of Baltimore, for appellants.
William C. Coleman, of Baltimore, and S. A. Williams, of Bel Air (Duncan K. Brent and Semmes, Bowen & Semmes, all of Baltimore, on the brief), for appellees.
This case is before us for the second time. The first appeal was taken from the action of the circuit court for Harford county in overruling the plaintiffs' demurrers to certain pleas interposed by the defendants, in the progress of the trial. There was no final order or judgment on the first appeal from which an appeal could be taken, and the defendants' motion to dismiss prevailed, and the appeal was dismissed by this court on the 4th of December, 1914. See October General Docket, No. 79. The case is now properly before us on the plaintiffs' appeal from a final judgment in favor of the defendants, and from which judgment the plaintiffs have taken this appeal. The questions in the case arise solely upon the pleadings. They are not only voluminous but somewhat lengthy, and the record contains numerous demurrers, pleas, motions replications, and exceptions. There were four declarations filed in the case, one original and three amended ones, claiming damages from $3,000 in the first to $5,000 in the third and to $6,000 in the fourth. These declarations were separately demurred to by each of the defendants, and the demurrers sustained except to the plaintiffs' third amended declaration, and to this they were overruled. Thereupon each defendant filed seven pleas, and the plaintiffs demurred to each of these pleas, except the first, which was the general issue plea. These demurrers were overruled, and, the plaintiffs refusing to reply to the defendants' pleas, a judgment was entered against them in favor of the defendants by default.
The pleadings involved at the trial, on the amended declaration, as shown by the docket entries, are as follows: February 19, 1914, leave granted to file amended declaration, and amended declaration filed. March 25, 1914, demurrer of Baltimore & Ohio Railroad Company and demurrer of American Bridge Company to third amended declaration. April 10, 1914, demurrer of each defendant heard and overruled, with leave to each defendant to plead. April 13, 1914, plea of Baltimore & Ohio Railroad Company and plea of American Bridge Company filed. April 22, 1914, plaintiff's replications to pleas of each defendant join issue on first, sixth, and seventh pleas and demur to second, third, fourth, and fifth pleas. May 2, 1914, leave granted to withdraw joinder of issue to defendant's sixth and seventh pleas in each case and demurrer to same. May 2, 1914, all demurrers in each case overruled. May 9, 1914, motion by plaintiff of ne recipiatur as to defendant's sixth and seventh pleas. June 20, 1914, application of defendants for leave to withdraw their second and third pleas and file in lieu thereof four additional pleas to be numbered 8, 9, 10, and 11, respectively, and order of court granting permission. June 20, 1914, additional pleas Nos. 8, 9, 10, and 11 of defendants filed. June 27, 1914, order of plaintiff to enter an appeal to the Court of Appeals from the order of court of May 2, 1914, overruling demurrers of the plaintiff to the pleas of the defendants. July 9, 1914, motion ne recipiatur by plaintiff as to certain pleas of defendants heretofore filed "withdrawn." September 24, 1914, record sent to Court of Appeals of Maryland. October 7, 1914, opinion of court that judgment be entered in favor of defendants by default and order of court that this be done. October 7, 1914, judgment in favor of defendants under order of court. December 5, 1914, order of plaintiff to enter an appeal to the Court of Appeals from the order entering judgment under date October 7, 1914. January 5, 1915, mandate from Court of Appeals of December 4, 1914, viz., "appeal dismissed by the court," received and filed.
In the view we take of this case, it would answer no good purpose to discuss in detail or at length the various questions of pleading sought to be raised by the record, because it is clear that, if the defendants' sixth and seventh pleas to the plaintiffs' third amended declaration are good and valid pleas, they constitute a good defense, and would defeat the plaintiffs' right of recovery. The sixth and seventh pleas are pleas of limitations, and are as follows: (6) That the alleged damages claimed by the plaintiff did not accrue within three years prior to February 19, 1914. (7) That the alleged cause of action did not accrue within three years prior to February 19, 1914. The court below overruled the demurrers to these pleas and held that, upon the record, they presented a valid defense to the plaintiffs' action, and in these rulings we concur.
The suit, it will be seen, was brought by the plaintiffs, residents of Harford county, against the defendants, the Baltimore & Ohio Railroad Company, a body corporate, operating a line of railroad, in the state, and the American Bridge Company, a New York corporation, but doing business in this state.
The original declaration was filed on the 18th of January, 1913, and the suit was instituted for the purpose of recovering damages for the alleged negligence of the defendants in the location, construction, and maintenance of a bridge across the Susquehanna river between the counties of Harford and Cecil, near Havre de Grace, Md., whereby the natural flow of water and free passage of ice down and along the river was impeded and obstructed, and which caused the ice to gorge in the river, overflow, and damage the property of the plaintiff on or about the 23d of January, 1910.
The conclusion of the original, the first and second amended declarations, is in substance as follows: And the plaintiffs say that the damage set forth in the above several counts and in each of them was caused by the negligence, unskillfulness, and want of care on the part of the defendants, or either or both of them, their officers, agents, servants, and employés, and without any negligence or want of care on the part of the plaintiffs.
On the 19th of February, 1914, more than four years after the alleged ice gorge, the plaintiff, by leave of court, filed a third amended declaration, which was the fourth declaration in the case, changing the cause of action from one in case for...
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