Sun Cab Co. v. Carmody
Decision Date | 23 March 1970 |
Docket Number | No. 285,285 |
Court | Maryland Court of Appeals |
Parties | SUN CAB COMPANY, Incorporated, v. Ivan CARMODY. |
Leslie J. Polt, Baltimore (William W. Cahill, Jr., Baltimore, on the brief), for appellant.
W. Hamilton Whiteford and Stanley B. Rohd, Baltimore (Due, Whiteford, Taylor & Preston, Baltimore, on the brief), for appellee.
Before HAMMOND, C. J., and McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.
After seven days of trial in the Superior Court of Baltimore City the court, Grady, J., having denied a motion for a directed verdict, submitted to the jury, with appropriate instructions, six issues, all of which were decided favorably to the appellee (Carmody). Following argument on motions for judgment N.O.V. and for a new trial, judgment on the verdict was made absolute in favor of Carmody against the appellant (Sun) in the amount of $55,777. Sun urges us to set at naught $17,200 (issues four and five) of the judgment, invoking, as it did below, section IV(5) of the Statute of Frauds, 29 Car. 2, C. 3, § IV(5) (1676), 2 Alexander's British Statutes 689 (Coe ed. 1912). Judge Grady held, correctly we think, that the Statute is not applicable. Our recital of the pertinent facts is a distillate of more than 1,000 pages of testimony.
Upon finishing law school Carmody, now 67, sought employment in the insurance industry. In time he became vice president, in charge of claims, of National Mutual Insurance Company of Washington. Eventually Herbert Glassman, who owned Sun, acquired control of National. Sun had been insured by National for many years, during which time there was an agreement between the two companies in respect of collections from tortfeasors causing damage to Sun's taxicabs in motor vehicle accidents. National was paid 50% of the amounts recovered out of which it had to pay its expenses, including attorney's fees. In 1961 Glassman, having decided to sell his interest in National, offered Carmody the same arrangement. Carmody accepted. He began working on Sun's claims in December 1961. The arrangement was never reduced to writing. Carmody's status was that of independent contractor. He testified that under his arrangement with Sun he was not to be called upon to perform any other services without compensation. Glassman, on the other hand, testified that Carmody was to to handle 'the safety end of the cab company.'
In 1962 American Insurance Company, one of Sun's compensation carriers, demanded retrospective premium of $23,000. Carmody testified Schiff proposed to him that he resist American's claim on the same contingent basis that applied in respect of the damage cases, i. e., 50% of any amount he could save for Sun. Schiff denied this. He said Carmody was obliged to do this free of charge. As a result of Carmody's activities American abandoned its entire claim.
A year or more after American made its demand Security Insurance Company, another compensation carrier, billed Sun for an $11,000 retrospective premium. Schiff again, according to Carmody, solicited his assistance on the same terms. Schiff denied this also. Again as a result of Carmody's efforts Security abandoned its claim.
On Christmas Eve, 1966, Schiff told Carmody the company had been sold and that all of Sun's personnel 'was to go with the new owners with two exceptions, he (Schiff) was out and so was (Carmody).' When Carmody asked for an accounting and payment Schiff said 'he wasn't going to pay (him) for anything.' He said 'he was getting out and he wasn't interested.' He invited Carmody to 'go ahead and sue Sun.'
In denying Sun's motion for a directed verdict Judge Grady held, paraphrasing 2 Corbin, Contracts § 446 (1950), that 'the agreement must be one of which it can truly be said that it is not to be performed within one year * * *, that there must not be the slightest possibility that it can be fully performed within one year.' Judge Grady thereupon instructed the jury (as to issues four and five):
'Now, Issue Four reads:
'Do you find any money due to the plaintiff from the defendant as a result of an alleged verbal agreement between the plaintiff and Mr. Schiff of the Sun Cab Company concerning the plaintiff's services rendered in connection with a claim made by the American Insurance Company against the defendant for retrospective insurance premiums?
'Issue Five is exactly the same except that instead of relating to the American Insurance Company it relates to the other insurance company mentioned in the evidence, the Security Insurance Company.
Counsel's exception to the instruction set forth above was based entirely on the ground that the cause of action stated in each of the two issues was barred by the Statute of Frauds.
Despite Sun's somewhat tortured arguments to the contrary we think our predecessors have given the applicable principles of law a solid foundation. In Ellicott v. Turner and Peterson's Ex'rs, 4 Md. 476, 488 (1853), Chief Judge Le Grand, for the Court, said:
(Original emphasis.)
In Cole v. Singerly, 60 Md. 348, 354 (1883), Judge Yellott, for the Court, said 'The learned Chief Judge (Le Grand) who delivered the opinion of the Court in that case (Ellicott, supra) supported this construction of the...
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