Condon v. Sprigg

Roberts, J., delivered the opinion of the Court. This is an action on the case for the recovery of damages for a nuisance. The suit was originally brought in the name of Jane Sprigg, by Horace Sprigg, her next friend. Subsequently the plaintiff moved to amend the declaration by striking out the name of “Horace Sprigg as next friend,” and to make Horace Sprigg, the husband of Jane, a joint plaintiff with her.

Leave was granted, the amendment made, and the defendant excepted. It is contended by the defendant, that the amendment was improperly allowed, because the writ was not also amended, and that, under the present state of the pleadings, the action cannot be maintained. In this view we do not concur, and think the question has been conclusively determined by this Court in Treusch vs. Kamke, 63 Md., 282 . The writ has accomplished its purpose, when the parties are before this Court.

The plaintiffs are voluntarily in Court, and the defendant in obedience to the mandate of the Court, is ³³⁴ required to appear. If, for the purpose of the plaintiffs’ case, it had been requisite to change the form of action, then an amendment of the writ might have been necessary. We find no error in the Court’s action in making the amendment. There was no oral argument in this Court on the demurrer to the equitable plea, nor do we find any reference to it in the appellant’s brief, we therefore infer that the question is not before us for our consideration.

The facts of this case are, that the plaintiff, Jane Sprigg, sustained serious injury whilst passing along the west side of Whatcoat street, a public thoroughfare of the City of Baltimore, by falling into an area or opening, in front of a dwelling-house on said street. This area is used as an entrance to the basement of the dwelling, which has a front of twelve or fourteen feet. This area is about twelve or fourteen inches in depth, and extends the full length of the front of the house, and has a uniform width of two feet and seven inches to the coping. The pavement is eight feet and two inches in width from the house front to the gutter.

The night on which the accident happened was so dark that the plaintiff could not see the pavement at her feet. She was not aware of the existence of the opening, nor did she know that there was any basement to the house. The area was without fence or gate to prevent any one falling therein. The chief controversy in this case arises out of the conflict of testimony as to the ownership of the property.

At the time of the accident the Land Records of Baltimore City disclosed the fact that the paper title to the premises was in the defendant. It appears from the testimony in the record that the premises had been conveyed to the defendant, before the happening of the accident, without his knowledge, and the deeds for the same placed upon the Land Records without his consent by an ³³⁵ office companion of the defendant, a Mr. Haines. Subsequently, Haines having sold one of the lots, applied to the defendant to execute a deed for the same to the purchaser, which he did, and in which he acknowledged the receipt of the sum of six hundred dollars, the whole purchase money, and therein warranted specially the property granted with such further assurances as might be requisite. The defendant claims that the first intimation he had of the two lots being conveyed to him, was when Haines requested him to execute a deed, and that he immediately requested him to convey the lots to somebody else, as he objected to their being in his name.

When he executed the first deed, he says, he supposed that both lots had been included in it, and that he never knew to the contrary until this suit was brought by the plaintiff. The second deed was not executed by the defendant for the premises where the accident happened, until after the plaintiff had fallen into the area-way and was injured, and not until after this suit was instituted. The second deed, like the former, contains a receipt for purchase money and guarantees and assurances of title. It is quite clear that if Haines caused the property to be conveyed to the