Fitzjarrell v. Boyd

Briscoe, J., delivered the opinion of the Court. This is an action brought by the appellee against the appellant to recover damages for injuries sustained while riding-in the defendant’s automobile, as his guest, caused by the alleged negligence of the defendant. Th case was tried in the Superior Court of Baltimore City, before the Court, sitting as a jury, and from a judgment in favor of the plaintiff for $1,750, the defendant has appealed. ⁵⁰¹ The declaration contains hut one count and it is as follows : That the defendant on or about the 16th day of October, 1012, was the owner of and operated an automobile in the City of Baltimore and in Howard County, Mary]and. That this plaintiff, at the invitation of the defendant, entered the automobile for the purpose and with the intention of being carried therein to Laurel, Maryland.

That while riding in the automobile and while exercising due care and caution on his part, the same was caused to skid and strike against a telegraph pole and overturn, and this plaintiff was thereby thrown from the automobile, bis left arm was broken between the shoulder and elbow, his left ankle was sprained, his head was severely cut, his left forearm was hadlv bruised, lie received severe bruises and contusions all over his body, he was severely injured in the left groin, he suffered from general shock to his system, and was further caused to suffer great physical pain and mental anguish. As a result thereof he was put to great cost for medical servic.es, surgeon fees and hospital charges; he was prevented for a long space of time from attending to his usual avocation, as an attorney at law, and thereby sustained great monetary loss, and other great, serious and permanent wrongs and injuries were by him thereby sustained. That the said automobile was caused to skid, strike said telegraph pole and overturn by reason of the recklessness, want of care, default and negligence of the defendant, his servant and employee, in attempting to pass a vehicle upon the road on which they were traveling at a high rate of speed and against the protest of this plain!iff made to said defendant immediately before the happening thereof and in time to have avoided the same. The record contains a single exception and that is to the ruling of the Court upon the defendant’s prayers.

The plaintiff offered no prayers but the defendant presented eight. Two of these were granted and six were refused. ⁵⁰² The exception to the fifth and sixth prayer is waived bj the defendant in his brief, so the questions for our consideration are presented by the rulings of the Court upon the defendant’s first, second, seventh and eighth prayers. The defendant relies upon two grounds as a basis of defense: First, that the Court has no jurisdiction, because the proceeding is amicable and pretended and only for the purpose of affecting the rights of strangers not parties to the suit, and second because there is no evidence of actionable negligence on the part of the defendant. The objections to the jurisdiction were raised by a motion to dismiss and by the defendant’s second and seventh prayers, offered at the conclusion of the whole evidence.

The motion was overruled, and the two prayers were refused. As these prayers will he set out by the Reporter, in his report of the case, and will be hereafter discussed by us, they need not be set out here, in extenso. It appears, that prior to the alleged accident, the Maryland Casualty Company, had issued to the defendant, a policy of automobile insurance, indemnifying him from and against loss on account of suits for personal injuries similar in character to the present suit, according to the conditions and provisions of the policy. The policy contains among others, the following provisions : “In consideration of one hundred and seventy-six dollars ($176.00), the Maryland Casualty Company, of Baltimore, herein called the Company, agrees to indemnify Harry A. Fitzjarrel, of Baltimore, State of Maryland, herein called the Assured, against loss from liability imposed by law upon the Assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered, or alleged to have been suffered, by any person or persons and caused by the automobile vehicles owned or operated by the Assured. * * * ⁵⁰³ “Ho action shall lie against the Company to recover for any loss under this policy unless it shall he brought by the Assured personally for loss actually sustained and paid in money by the Assured in satisfaction of a final judgment after trial of the issue; nor unless such action is brought within.

(90) days after such judgment by a court of last resort against the Assured has been so paid and satisfied.” While it may be conceded in this case that the result of the litigation will necessarily affect the interest of a third party, the Casualty Company, who is not a party of record it does not follow because this is so, that the suit is collusive and fictitious, as alleged. If the real and primary object of the suit is to redress the grievance of the plaintiff and there is an actual controversy,