State v. Maryland Elec. Rys. Co.

• Decision Date: 22 June 1915
• Docket Number: 13.
• Citation: 95 A. 43,126 Md. 300
• Parties: STATE to Use of COX et al. v. MARYLAND ELECTRIC RYS. CO.
• Court: Maryland Court of Appeals

95 A. 43

126 Md. 300

STATE to Use of COX et al. v. MARYLAND ELECTRIC RYS. CO.

No. 13.

Court of Appeals of Maryland

June 22, 1915

Appeal from Baltimore City Court; Morris A. Soper, Judge.

State of Maryland, to the use of Emma P. Cox and others, against the Maryland Electric Railways Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

T Tilden Kelbaugh, of Baltimore, and David G. McIntosh, of Towson, for appellants. Frank B. Ober and Stuart S. Janney both of Baltimore (Ritchie, Janney & Griswold, of Baltimore on the brief), for appellee.

PATTISON J.

This suit was brought, under article 67 of the Code, by the appellants, the widow and infant children of George C. Cox, a lineman of the Chesapeake & Potomac Telephone Company, for damages resulting from the alleged negligence of the defendant, causing the death of the said George C. Cox while in the employment of the said Chesapeake & Potomac Telephone Company. In addition to the general issue plea, the defendant filed a further plea in which, briefly stated, it is alleged that the plaintiff had previously instituted, in the court of common pleas of Baltimore city, a suit against the Chesapeake & Potomac Telephone Company to recover damages for the same tort which is the alleged cause of the present action, and that the said Chesapeake & Potomac Telephone Company appeared and pleaded to said suit, which was thereafter compromised and settled by the payment of the sum of $2,527.20 to the plaintiffs by the said Chesapeake & Potomac Telephone Company, which was duly acknowledged in said proceedings and the entry made therein, "Agreed and settled and all claims therein satisfied." A copy of said proceedings including the aforesaid declaration, a power of attorney from the plaintiffs to their attorney in that suit, and the docket entries, was filed with and made part of said plea. In reply to this second plea the plaintiffs filed their first and second replications, in which they do not deny the institution of the suit aforesaid, or that the declaration therein stated a different cause of action from that mentioned in the plea, or that the said suit was compromised and settled as stated in the plea. They admit the payment to them by the defendant in that suit of the aforesaid sum, but deny that it was paid to or received by them for the tort aforesaid, and claim that it was paid to them as beneficiaries of George C. Cox from the relief fund of the employés' pensions, disability benefits, and insurance fund, of which association the said George C. Cox was a member, either as insurance or for three years' wages to said Cox, to which they were entitled from such fund, and that the suit against the Chesapeake & Potomac Telephone Company was instituted to recover such insurance or wages, and not to recover damages sustained by them by reason of the death of the said George C. Cox; and in their replication they allege that the death of the said George C. Cox was not caused by the negligence of the Chesapeake & Potomac Telephone Company. A demurrer was interposed to these replications, but it was overruled, and the defendant thereafter filed its rejoinders. Issues were thereafter joined, and the case proceeded to trial. At the conclusion of the plaintiffs' testimony the defendant offered three prayers, each of which asked the court to direct the jury to render a verdict for the defendant; the first, because of a want of legally sufficient evidence entitling the plaintiffs to recover, the second, because of a want of legally sufficient evidence under the pleadings entitling the plaintiffs to recover, and the third, because of contributory negligence on the part of the deceased, George C. Cox. The first and second prayers were refused, the third prayer was granted, and a verdict was rendered for the defendant, upon which a judgment was entered. Exceptions were taken to the ruling of the court upon the granting of the defendant's third prayer and to the rulings of the court upon the admission and rejection of certain testimony offered in the trial of the case, and from the judgment so entered an appeal was taken.

The main questions here presented are: First. Whether the prior settlement between the equitable plaintiffs and the Chesapeake & Potomac Telephone Company, as disclosed by the pleadings, is a bar to this action. Second. Whether Cox is shown to have been guilty of contributory negligence. If the first of these questions is decided in the affirmative, then it will be unnecessary for us to consider and pass upon the second or upon the rulings on the admission and rejection of the testimony.

The aforesaid power of attorney executed by the appellant, Emma P. Cox, as widow and as mother and next friend of the infant children of George C. Cox, deceased, not only appointed Carter Lee Bowie as attorney to institute said suit, but it authorized him to prosecute it--

"to a verdict or to compromise and settle the said suit for the sum of $2,527.20, to be paid by the Chesapeake & Potomac Telephone Company, of Baltimore city, from its employés' benefit fund or otherwise, and to enter said suit and the cause of action 'Agreed and settled and all claims therein satisfied."'

Pursuant to such authority, the suit was compromised by the defendant paying to the plaintiffs the aforesaid sum of $2,527.20, and the case was marked:

"Agreed and settled on terms, defendant to pay costs by order of the plaintiff's and defendant's attorneys filed."

The replication goes...