Lanasa v. Beggs

Parke, J., delivered the opinion of the Court. Bessie M. Beggs, plaintiff, and wife of Clayton D. Beggs, was injured while a passenger of the Yellow Cab Company, by the collision of the cab in which she was riding with a laden two-ton motor truck of Vincent Lanasa, the defendant and a non-resident. The place of the collision was the space formed by the intersection of Mt. Boyal Avenue and ISTorth Avenue, which are two public streets of Baltimore City.

The plaintiff brought two separate but successive proceedings against the alleged wrongdoers to recover for the injury sustained. She had issued out of the Baltimore City Court a nonresident attachment in an action for wrongs independent of contract, in which the amount of the damages claimed was fixed in her affidavit and also in the declaration, at the sum of $5,000, and her approved bond was based upon this amount. Code, art. 9, secs. 44, 39, 4-24. The return shows the attachment was laid in the hands of a garnishee, and that an automobile was seized.

The nonresident defendant appeared in the short note case and pleaded non cut, and dissolved the attachment by filing a bond in a sum equal to the attached property’s value, which was not in excess of the plaintiff’s claim, and conditioned to* satisfy any judgment which might be recovered against him in the short note case. Code, art. 9, sec. 19. The case went to trial on the declaration, and the plaintiff obtained a judgment for $8,000, which was $3,000 in excess of the amount of the damages upon which the attachment proceedings were founded. The amount of verdict and judgment was rendered possible by the court permitting the plaintiff to amend her declaration by changing the ad damnum clause from its original $5,000 to $25,000. .The fifteenth bill of exception raises the propriety of this ruling. ³¹⁴ The present purpose of an attachment against a nonresident tort-feasor is to compel his appearance to ah ordinary-action at law, and to secure meanwhile a specific lien on his property attached until a good and sufficient bond is substituted.

Code, art. 9, sec. 19. If, instead of suffering the -attachment proceedings to take their course, such nonresident wrongdoer take the other alternative and elect to appear to the action, he must be held bound by the principles and rules of pleading and practice which prevail in the court to whose jurisdiction he has voluntarily submitted, since his appearance is by choice, and an action for wrongs independent of contract against a nonresident does not differ in substance and procedure from an action against any other defendant in a suit in personam within the general jurisdiction of the court. So, the nonresident defendant may plead any available defense and he is bound by the law and procedure of the forum in the conduct of the case, unaffected by the fact that an attachment was issued or is outstanding. Hodge & McLane on Attachment, secs. 68, 69.

The declaration in the action to which the nonresident appeared was amendable under the general statute relative to practice, so that the case might be tried on its real merits and the purposes of justice subserved. This broad privilege is limited by the one provision that entire new parties, either plaintiffs or defendants, can not be made. Code, art. 15, secs. 39-49; 2 Poe, Pl. & Pr., secs. 183-190. Moreover, the statute regulating attachments provides that the affidavit, short note, declaration, voucher, pleadings, interrogatories, claim of property and all other papers in attachment proceedings may be amended in the same manner, and to the same extent as the proceedings in any other suits or actions at law, so that all attachment cases may be tried on their real merits and the purposes of justice subserved.

Code, art. 9, sec. 28. Within these several statutory provisions, the court commonly exercises its discretion with respect to granting or refusing amendments, without being subject to review. So, it ³¹⁵ is clear that the statutes permit the amendment of the declaration whereby the ad damnum clause is increased from $5,000 to $25,000, unless the change be violative of the common purpose of both statutes to assure a trial on the merits and to subserve justice. Warren Bros. v. Kendrick, 113 Md. 603, 612, 613 (action on bond dissolving attachment); Booth v. Calahan, 97 Md. 317 ; Kendrick v. Warren, 110 Md. 47 ; DeBearn v. DeBearn, 119 Md. 429 ; Sugar Products Co. v. Kitzmiller, 137 Md. 652 ; De Bebian v. Gola, 64 Md. 266 ; Neptune Ins.

Co. v. Montell, 8 Gill, 228 ; Gill v. Physicians etc. Bldg., 153 Md. 400 ; Union Trust Co. v. Biggs, 153 Md. 58 . Notwithstanding this broad and general discretionary power of amendment, it has its limitations, and will not be permitted to nullify the plain and explicit provisions of thp statute, nor should it be exercised so as to afford either party a clear and undue advantage. See Farmers etc. Bank v. Harper, 151 Md. 358, 362, 363 ; Commercial Credit Corp. v. Schuck, 151 Md. 367, 370, 374 . The record at bar exemplifies both exceptions.

The issuance of an attachment against a nonresident in an action for wrongs independent of contract is conditioned upon a declaration and a bond having first been filed. The law prescribes that the declaration shall set out specially and in detail the tort actually committed and be verified by the affidavit of the plaintiff or some one in his behalf. Furthermore the bond exacted must be with security to be approved by the clerk in double the sum alleged to be due by the defendant, and be conditioned for satisfying all the costs which may be awarded to the defendant, or to any other person interested in the proceedings, and all damages which the defendant, or any other person interested in the proceedings, shall suffer because of the wrongful suing out of such attachment. The subtitle of the statute in question moreover specifies that the practice and pleadings shall in all other particulars conform to the practice and proceedings against nonresident and absconding debtors, in actions ex com iractu for liquidated damages.

This provision renders it necessary that an affidavit that the debtor is bona fide indebted to the attaching creditor in a sum certain, over and above all ³¹⁶ discounts, and is not a citizen of this state, and does not reside therein, shall be made and filed with the other initiative papers. Code, art. 9, secs. 44, 4. The sum alleged to be due is required to be explicitly stated in the affidavit in order that the penalty of the bond in precisely double that sum may be ascertained. The exaction of this bond is not only a protection to the alleged debtor but also a deterrent to false, unfounded, or speculative claims; and, whether the attachment issued be dissolved or not, this bond continues effective until the proceedings set in operation by the attachment are at an end.

Hence the statute contemplates that the ratio of two to one between the penalty of the bond and the full amount of the claim of the attaching creditor ex delicto or ex contractu remain constant throughout the entire litigation. If this were not true, an attaching claimant in an action ex delicto or ex contractu could deprive the alleged debtor of the protection accorded by the statute by making his original claim less than ultimately intended, and then, after furnishing a bond in the inadequate penalty fixed by the reduced claim, enlarge it by amendment to meet his utmost expectation. A court could not permit such an obvious manoeuvre to defeat the express and definite statutory prerequisite to its writ. In the appeal at bar, the plaintiff sustained certain injuries from the collision of two alleged tort-feasors.

Her damages are entire, though her injuries may have resulted from the negligence of one or both of the wrongdoers. In her action against the resident tort-feasor, she lays her damages at $25,000, but in her attachment against the nonresident tortfeasor for the same injuries she swears her damages are but $5,000, and thereby is only bound to bond in the penalty of but $10,000; and then later obtains leave to amend by raising her damages to $25,000, and so escaped furnishing a bond in a penalty of $50,000. The inference is obvious, and the undue advantage afforded the plaintiff is manifestly in defiance of the spirit of the law and is not even within its letter. While a fundamental object of the statute was defeated when the statutory ratio between the penalty of the bond and the ³¹⁷ claim of the defendant was destroyed by the amendment of the ad damnum, clause of the declaration, yet this result could have been obviated and the right to amend gratified by the requirement that the penalty of the bond be enlarged to correspond with the change in the amount of the damages claimed.

Since the decision in Gill v. Physicians, etc. Bldg., 153 Md. 397 , there is no doubt of the power of the court to permit an amendment in the form of filing a new bond in an increased penalty, and the court at nisi prius was in error in permitting the amendment of the declaration without exacting as a prerequisite the filing of a new bond by the plaintiff in the penalty of double the new amount claimed by the proposed amendment. The case is apparently one of first impression, as the court has not found, nor have counsel furnished, any authority directly in point, but the conclusion adopted is the one consonant with reason and in harmony with the terms and purpose of the statute. 2. The defendant’s ninth, tenth, eleventh, and twelfth exceptions are to the refusal of the court to allow the defendant to offer testimony tending to establish an accord and satisfaction of the action brought by the plaintiff against the Yellow Gab Company to recover for the injuries received by the plaintiff in the collision of its cab with the truck of the present defendant. After the rejection of this testimony, the ile.feiida.iLti in the instat ease obtained leave of the court to file an additional plea in bar, by which it was alleged that on June 1st, 1928, the plaintiff brought a suit against the Yellow Cab Company to recover damages for the same tort which is the cause of action in the pending litigation, and that this suit against the cab company was compromised and settled on February 1st, 1929, by the payment to the plaintiff by the cab company of the sum of $1,032.40, and that on [February 14th, 1929, the plaintiff instituted the attachment proceedings now at bar, and that the pleader was unable to obtain this information before the beginning of the trial on [November 12th, 1929.

After the filing of this plea, the defendant made a motion of ne recipiabm•, which was sus ³¹⁸ tained. Technically the motion of ne reeipiatur was too late,, as it should have been made before the additional plea was-filed. After the filing of the plea, a motion should have been 10 strike the plea from the file, or its legal sufficiency could have been raised by a demurrer. After the ruling on the additional plea, the defendant renewed the offer of the documentary testimony excluded by the court, and the propriety of this action is presented by the sixteenth bill of exceptions.

The offer of proof included the declaration and plea in the suit of the plaintiff against the Yellow Cab Company for $25,000 damages sustained by her through its negligence in bringing about the collision with the truck of the defendant on this record; the written agreement between the plaintiff and her husband and the cab company bearing date February 1st, 1929; and the check of the-cab company for $1,032.40, which was received by the plaintiff and her husband in full payment according to the terms-of the agreement. These written instruments were accompánied by the proffer to show that the case of the plaintiff against the cab company and that of her husband against the cab company for loss of her services stood open and. pending according to the docket of the court in which the actions were brought. The written agreement of the plaintiff and her husband’ was not under seal. Its recitals disclose that certain injuries and damages were sustained by the plaintiff and her husband as a result of the harm done the plaintiff in the collision between the cab of the company and the truck of Yincent Lanasa, the defendant here, on March 16th, 1928; that the plaintiff and her husband had severally begun suits against the company to recover their respective damages arising-from this collision, and had or were about to start suit against Lanasa to recover damages for the same wrong, and that, in consideration thereof, and of the payment of the sum of $1,032.40 to- them by the cab company, the said plaintiff and her husband promised and agreed (1) that they will not at any time file o-r institute any suit, action ³¹⁹ at law or otherwise against the company claiming any loss or damage growing out of the alleged damage and injury as a result of the collision; and (2) that they will not prosecute or cause to be tried or try to bring to trial their said pending suits, hut will assume to pay any and all costs thereof.

The agreement declares that the promises of the plaintiff and her husband shall in no way affect their rights or claims to recover damages against Lanasa for losses resulting from the collision, and that the agreement is not intended nor is it to be construed as a release of Lanasa or of the company. The additional plea and the evidence excluded at nisi prius present the question whether - or not an accord and satisfaction with one joint tort-feasor is a bar to the prosecution of an action against the other tort-feasor, or the amount paid is merely to he considered in connection with mitigation of damages. Where several persons unite in an .act which constitutes a wrong to another, each must assume and hear the responsibility for the misconduct of all, and the party injured may pursue all in one action or any one of them severally, or any number less than