U.S. Fidelity & Guar. Co. v. Williams

• Decision Date: 10 June 1925
• Docket Number: 50.
• Citation: 129 A. 660,148 Md. 289
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. WILLIAMS.
• Court: Maryland Court of Appeals

129 A. 660

148 Md. 289

UNITED STATES FIDELITY & GUARANTY CO. v. WILLIAMS.

No. 50.

Court of Appeals of Maryland

June 10, 1925

Appeal from Court of Common Pleas of Baltimore City; James M Ambler, Judge.

Attachment by Lillie L. Williams against the United States Fidelity & Guaranty Company and another, as garnishees, on judgment against Hugh R. Price. Judgment for plaintiff, and named garnishee appeals. Reversed and remanded, with directions.

Argued before BOND, C.J., and URNER, OFFUTT, DIGGES, PARKE, and WALSH, JJ.

Edgar Allan Poe, of Baltimore (Robert D. Bartlett, of Baltimore, on the brief), for appellant.

William Trickett Giles and W. W. Parker, both of Baltimore, for appellee.

DIGGES J.

On the 25th day of March, 1922, the appellant, United States Fidelity & Guaranty Company, issued a policy of insurance to Hugh R. Price. The amount stated in the policy was the sum of $5,000, and the term of the policy was from noon on the 25th day of March, 1922, to noon on the 25th day of March 1923. The policy is set out in full in the record, and the portions thereof which are necessary to be considered for determination of the question involved in this case are as follows:

"United States Fidelity and Guaranty Company, Baltimore Maryland (hereinafter called the company) in consideration of the premium and the declarations set forth in the schedule of statements hereto, and subject to the terms, limits, and conditions set forth herein, does hereby insure the assured named and described as such in the schedule of statements hereto, against loss and/or expense, arising or resulting from claims upon the assured for damages in consequence of an accident occurring within the limits of the United States and Canada during the term of this policy, by reason of the ownership, maintenance or use (including the carrying of goods thereon and the loading and unloading thereof when commercially used), of the automobile or any of the automobiles enumerated and described herein resulting in

(A) Bodily injuries, or death resulting at any time therefrom, suffered by any person or persons other than any employé or employés of the assured while engaged in the care operation or maintenance of any of the assured's automobiles.

In addition to the above, the company does hereby agree:

(1) To defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim, whether groundless or not, on account of damages suffered or alleged to be suffered under the circumstances hereinbefore described.

(2) To pay the expenses incurred in defending any suit described in the preceding paragraph, also the interest on any judgment within the limits of the insurance hereby granted and any costs taxed against the assured on account thereof.

Insolvency Provision.

(5) The insolvency or bankruptcy of the assured hereunder shall not release the company from the payment of damages for injuries sustained or loss occasioned during the life of this policy, and, in case execution against the assured is returned unsatisfied in an action brought by the injured, or his or her personal representative, in case death results from the accident, because of such insolvency or bankruptcy, then an action may be maintained by the injured person or his or her personal representative against the company under the terms of the policy for the amount of the judgment in said action, not exceeding the amount of the policy.

Paragraph B.

(2) No action by the assured shall lie against the company until the amount of the damages for which the assured is liable by reason of any casualty covered by this policy is determined, either by a final judgment against the assured, or by agreement between the assured and the plaintiff with the written consent of the company; nor unless such action is brought within two years after the rendition of such final judgment.

(4) The assured shall not voluntarily assume any liability; nor interfere in any negotiations or legal proceedings conducted by the company on account of any claim; nor, except at assured's own cost, settle any claim; nor, without the written consent of the company previously given, incur any expense, except as provided herein for immediate surgical relief at time of accident.

(5) Whenever requested by the company, the assured shall aid in securing information, evidence, and the attendance of witnesses in effecting settlements and in defending suits hereinbefore referred to. The assured shall at all times render to the company all reasonable co-operation and assistance."

The assured named in the policy was Hugh R. Price, and the automobile mentioned in the schedule was a Ford sedan. On May 19, 1922, the Ford sedan mentioned in the schedule, while being driven by Hugh R. Price, the other occupants of which being the wife of Hugh R. Price, his aunt, Lillie L. Williams, and her husband, Edward A. Williams, was in collision with a car of the United Railways & Electric Company on North avenue in the city of Baltimore. By reason of the collision, Lillie L. Williams was injured, and thereafter brought suit in the court of common pleas of Baltimore city against the United Railways & Electric Company and Hugh R. Price, for damages resulting from the injuries received at the time of the collision. This suit was tried before a jury, and resulted in a verdict and judgment in favor of the defendant United Railways & Electric Company and against the defendant Hugh R. Price, for the sum of $5,000, with interest from October 13, 1923, the date upon which the judgment was made absolute, and costs. At the time of the institution of this suit Hugh R. Price notified the appellant of its institution, and the appellant's counsel defended the suit on behalf of Price. After the time for appeal from this judgment had elapsed, the plaintiff in that suit, Lillie L. Williams, sued out an attachment in the court of common pleas on the judgment thus obtained, and the return of the sheriff on said attachment was:

"Laid in the hands of the Robinson Oil Company, a corporation, by service on Edward G. Cole, secretary, on the 13th day of December, 1923, at 4:35 o'clock p. m., in presence of Maurice L. Yaffe and garnishee summoned. Also laid in the hands of the United States Fidelity & Guaranty Company, a corporation, by service on Joseph W. Bristor, assistant to president, on the 12th day of December, 1923, at 4:50 o'clock p. m., in presence of Maurice L. Yaffe and garnishee summoned. Also a copy of the writ of attachment, the process in the within cause, left with each garnishee.

John E. Potee, Sheriff."

On January 11, 1924, interrogatories on behalf of Lillie L. Williams, directed to the United States Fidelity & Guaranty Company, were duly filed and served upon the appellant. The plea of the appellant, the garnishee, filed January 19, 1924, was "nulla bona," and thereafter the appellant answered the interrogatories, the answer to all of the interrogatories being "No," except the fourth, which was:

"In answer to the fourth interrogatory, the defendant states that it issued on March 25, 1922, policy of liability and property damage insurance to Hugh R. Price for a period of one year, which policy expired March 25, 1923, and that said policy has never been in the possession of the U.S. Fidelity & Guaranty Company since it was delivered to the said Hugh R. Price, on or about March 25, 1922, and that it presumes that said policy is still in possession of the said Hugh R. Price, although it has no definite knowledge to this effect."

Issue was joined, and the case upon these pleadings was tried before a jury on the 25th and 26th days of February, 1924, resulting in a verdict in favor of the appellee for $5,164.30, upon which verdict a judgment for that amount was entered on the 28th day of February, 1924, with interest from the 26th day of February, 1924, and costs of suit. From the above judgment, on the 13th day of March, 1924, the appellant appealed.

On the 15th day of May, 1924, the plaintiff below, appellee here, filed her petition in the lower court, praying that that honorable court refuse to sign the bills of exception on behalf of the defendant, for the reason that said defendant is in default of the provisions of the act of 1916 (chapter 625 of the Laws of Maryland). The appellant, on the 16th day of May, 1924, answered said petition, setting forth its action in respect to the bills of exception, and stating therein:

"That the case was one where the jury were instructed by the court to render verdict for the plaintiff and the question of law involved in the appeal is one of considerable importance; that your petitioners feel that the rights of the plaintiff have in no way been prejudiced by the fact that said bills of exception were not served on the plaintiff's counsel on the 12th day of May, instead of the 15th day of May, and that a grave injustice will be done the defendant, unless said bills of exception are signed by your honor."

The bills of exception were filed, and signed by the court on the 16th day of May, 1924. The appellee, on the 17th day of May, filed special exceptions to the action of the lower court in signing the bills of exception, as follows:

"Lillie L. Williams, by W. W. Parker, her attorney, represents unto this honorable court, that she has just been apprised of the action of this honorable court in signing the bills of exception filed by the defendant in the above-entitled case, which was done by this honorable court on the 16th day of May, 1924, over the protest of this plaintiff contained in her petition filed on the 15th day of May, 1924, and this plaintiff herewith respectfully excepts to the action of this honorable court in signing said bills of exceptions, and asserts, in support of this

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