Landwehr v. Continental Life Insurance

²⁰⁸ Sloan, J., delivered the opinion, of the Court. The appellant brought suit against the appellee on an accident insurance policy issued by the appellee to Lawrence Landwehr, who' was killed while riding in a side car attached to a motorcycle. The declaration contained six common or money counts, and one (seventh) special count declaring on the insurance policy. The defendant filed the general issue pleas to the first six counts and demurred to the seventh; the demurrer was sustained, and the defendant allowed fifteen days to amend.

No' amendment, having been made to 'the seventh count, the defendant (appellee) 'filed a petition for leave to withdraw its pleas to the first six or common counts of the declaration and asked a rule bill of particulars, which was granted. Thereupon the plaintiff (appellant) filed a bill of particulars, which was a repetition of the facts alleged in the seventh count of the declaration. The appellee excepted to the bill of particulars on the ground that its legal sufficiency had already been determined on the demurrer to the seventh count of the declaration, and its exceptions were sustained. The appellant then, on leave granted, amended its declaration by withdrawing the first six, or common counts.

The appellee then moved for judgment of non pros, for failure of the appellant to file an amended declaration, and a non pros. was granted and a judgment entered for defendant for costs. The demurrer had been sustained with fifteen days leave to amend on April 2nd, 1929, and nothing was done with respect to it until the appellee’s motion for a non pros, on February 5th, 1930, which was granted the same day. The appellee has filed a motion to dismiss the appeal to this court for the reason that the only question on appeal is the demurrer to the seventh count of the declaration, and that it has been out of the case since the expiration of the fifteen days leave to amend. This is true so far as the seventh count may have been involved in the case, but time did not begin to run against it until there was a final judgment.

If the case had gone! to trial on the first six counts and a judgment entered on a verdict, the demurrer would still ²⁰⁹ have been open to review before this court. Code, art. 75, sec. 10; 1 Poe, Pl. & Pr., sec. 710; 2 Poe, Pl. & Pr., secs. 591, 826; Emersonian, Apartments v. Taylor, 132 Md. 209 . Where, however, the only judgment in the case is the judgment on demurrer, then “the time for the appeal is counted from the judgment on the demurrer and not from the ruling of the court; and that the judgment on demurrer was an adverse determination of appellant’s suit from which he had the right of appeal.” State, use of Brooks, v. Fidelity & Dep. Co., 147 Md. 194 ; Emersonian Apartments v. Taylor, 132 Md. 210 , 215; State v. Jenkins, 70 Md. 472, 479 .

The appeal in this case was taken from a judgment of non pros. and a judgment for the defendant for costs, and there being no other issue after the abandonment of the first six counts of the declaration, the judgment so entered was. final and one from which an appeal will lie. ' Henderson v. Maryland Home Ins. Co., 90 Md. 52 ; Rutledge v. McAfee, 72 Md. 32 ; Gittings v. State, 33 Md. 461 ; Emersonian Apartments v. Taylor, supra; Stabile v. Danini, 132 Md. 567 ; State, use of Brooks v. Fidelity & Dep. Co., 147 Md. 194, 195 . The motion for dismissal of the appeal will therefore be denied.

This is a suit brought by Ferdinand J. Landwehr, administrator de bonis non of the estate of Lawrence B. Landwehr, deceased, against the Continental Life Insurance Company on an accident insurance policy issued by the latter1 to Lawrence B. Landwehr on September 23, 1926, to recover the cleath "benefits of the insured who came to his death by accident on the 6th day of September, 1928, while riding in a side car attached to a motorcycle owned and being driven by one William Leek. The policy provided for the payment of compensation or benefits in ease the insured was injured or came to his death “By the wrecking or disablement of any Private Automobile, Motor Driven Car, or Horse Drawn Vehicle of the exclusively pleasure type, in which the member (insured) is riding or driving, or by being accidentally thrown from such wrecked or disabled automobile, car or vehicle.” ²¹⁰ The appellant contends that the vehicles known as automobiles and motor driven cars include motorcycles, and because the trial court disagreed with such a construction of the contract of insurance this appeal is taken. The question involved in this appeal has not been before this court, but substantially the same form of policy was construed in LaPorte v. North American Accident Insurance Co., 161 La. 933 ; Salo v. North American Accident Ins. Co., 257 Mass. 303 ; Perry v. North American Accident Ins. co., 104 N. J. L. 117; Colyer v. North American Accident Ins.

Co., 230 N. Y. Supp. 473 ; Anderson v. Life & Casualty Co. of Tenn., 197 N. C. 72 . In Salo v. North American Accident Insurance Company, supra, the court said: “It is a matter of common