Western Union Tel. Co. of Baltimore City v. State
| Decision Date | 08 January 1896 |
| Citation | 33 A. 763,82 Md. 293 |
| Parties | WESTERN UNION TEL. CO. OF BALTIMORE CITY ET AL. v. STATE, TO USE OF NELSON. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore city court.
Action by the state, to the use of Edward Nelson, against the Western Union Telegraph Company of Baltimore City and the City & Suburban Railway Company for the death of Michael Nelson. From a judgment for plaintiff, defendants appeal. Affirmed.
Two requested instructions, the refusal to grant which was made the ground of the third exception, were presented,--one by the defendant the City & Suburban Railway Company, as follows: "The City and Suburban Railway Company, one of the defendants in this case, prays the court to instruct the jury that there has been no evidence offered in this case legally sufficient to show that the death of the said Michael Nelson, the son of the equitable plaintiff, was caused by negligence of the said City and Suburban Railway Company, and the verdict of the jury must be for the said City and Suburban Railway Company;" and another by the defendant the Western Union Telegraph Company of Baltimore City, as follows: "The Western Union Telegraph Company of Baltimore City prays the court to instruct the jury that no evidence has been produced legally sufficient to show that the alleged cause of action occurred within twelve months before the bringing of this suit against said defendant, nor to show that the death of Michael Nelson was directly caused by the negligence of said Western Union Telegraph Company of Baltimore City, and their verdict must therefore be in favor of said defendant."
Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER PAGE, and BOYD, JJ.
W Irvine Cross, John K. Cowen, and E. J. D. Cross, for appellants.
Isidor Rayner and Isaac L. Straus, for appellee.
This action was brought against the Western Union Telegraph Company and the City & Suburban Railway Company, to recover damages for the alleged neglect of the defendants, whereby one Michael Nelson lost his life. In the narr and summons the telegraph company is referred to as "The Western Union Telegraph Company," but in the bill of particulars filed with the narr, the words "a corporation of the state of New York" are appended to the corporate name. The summons was served on Richard Bloxham, "its manager." During the trial, it appeared from the evidence that there are two companies, one whose corporate name is "The Western Union Telegraph Company," a corporation of the state of New York, and another whose corporate name is "The Western Union Telegraph Company of Baltimore City," a corporation of the state of Maryland. Richard Bloxham, on whom the writ was served, is the general manager of the former in this state, and the president and manager of the latter. The evidence also established the facts that the pole on which the fatal wire was suspended is the property of the Maryland corporation and that the New York company neither owned nor controlled poles in that vicinity. Thereupon the counsel for the plaintiff asked leave to amend the declaration and bill of particulars to conform to the proof, and stated, at the time, that the Maryland company was the one intended to be sued, and it was only because of his want of knowledge as to the correct name of the corporation that the words "of Baltimore City" had been omitted. There being no objection, the leave was granted, and the amendment made. Mr. Cross, who was the counsel for the defendants, then had his appearance entered for the Western Union Telegraph Company of Baltimore City, and filed the three following pleas, viz.: First, the plea of limitations; second, that the cause of action did not accrue within 12 months before the filing of the plaintiff's amended declaration, by which it was made a party to the suit; and, third, the general issue plea. The plaintiff, having joined issue on the first and third of these pleas, moved to strike out the second; and the action of the court in granting this motion constitutes the defendants' second exception.
It is contended on behalf of the telegraph company that by the amendment a new party was made, which was, in fact, so far as it was concerned, the equivalent of bringing a new suit, and therefore a plea which averred that the cause of action did not accrue within 12 months before the filing of the amended declaration was not improperly setting out that provision of the Code that provides that actions like the present must be commenced within 12 months after the death of the deceased person. Code, art. 67, § 2. But to this we cannot agree. The thirty-sixth section of article 75 of the Code provides that no action shall abate by reason of the misnomer of a defendant, but the court, at its discretion, on suggestion, etc., or other proof to the satisfaction of the court that "by mistake the plaintiff has sued in a wrong name or that the party summoned in virtue of said writ or action is in fact the party intended to be sued by such writ or in such action may at any time, before judgment, direct the writ or any of the proceedings to be amended by inserting therein the true name" of any defendant. In this case, the summons was served on a person who was an officer of both companies, and upon him as manager of the defendant corporation. He was, in fact, the manager of both. The service was efficient to bring into court either one of the companies. Under these circumstances, it might well happen that an attorney who was closely connected with both, and knew the very slight differences in the two corporate names, might fall into error as to which company was intended to be sued; but if he did, his mistake could not operate to deprive the plaintiff of his right, when he discovered there were two companies with names so nearly alike, of designating which of the two he was suing. When, therefore, the suggestion of misnomer was made, with the statement that it was the Maryland corporation that it was intended to sue, and the court, in its discretion, ordered the amendment to be made, not for the purpose of adding a new party, but to correct the name of a party actually summoned, the defendant could thereby acquire no right to interpose any other or different plea than it would have had if it had been correctly named in the first instance. If, upon the amendment being made, the ends of justice required further time, to enable the defendant properly to prepare its case, the court had full power to have ordered a continuance. It does not appear, however, that the counsel for the defendant asked for or desired delay. He could not have been surprised. The narr disclosed that the negligence complained of was in connection with a wire on Eastern avenue near Luzerne street, and Bloxham, who was manager of both companies, knew, or ought to have known, that the telegraph poles and wires in that locality were owned or controlled by the Maryland company, and that the New York company had none in that vicinity. He therefore must have known that it was the Maryland company that was intended to be sued, and it did not require much mental acuteness to enable him to understand that the misnomer occurred by reason of the very slight difference in the two names. It is plain that the error of the plaintiff's attorney was due to the fact that he did not know that the company he intended to sue had the words "of Baltimore City" as a part of its name, and, as soon as he became better informed, he so stated to the court, and prayed the amendment. To hold, under such circumstances, that the amendment brought in a new party, and thereby enabled it to plead limitations, to be computed from the filing of the amended declaration and not from the commencement of the action, would be a gross injustice to the plaintiff. It follows from what has been said that we find no error in the second and fourth exceptions, or in the rejection by the court of the second and third prayers of the telegraph company. By the fourth exception it appears that the defendants were not permitted to offer in evidence the charter of the New York company. But it was not a party to the suit, and the contents of its charter were wholly irrelevant to any of the issues before the court or jury. The first exception was not referred to in argument, and we understand was abandoned.
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