McCormick v. Hullcoat

Johnson, J., delivered the opinion of the Court. This is an appeal from a judgment of non pros, entered by the Court of Common Pleas of Baltimore City after hearing testimony upon appellee’s motion therefor. Joseph McCormick, plaintiff below and appellant herein, while riding with Arthur Hullcoat in the automobile of the latter near Mitchellsville, Prince George County, on August BOth, 1937, claimed to have sustained serious, painful, ¡and permanent injuries when the Hullcoat machine struck and collided with an automobile truck of Triangle Auto Supply Company, Inc., the other defendant, because of the negligent manner in which both vehicles were operated, and subsequently brought the suit to recover damages for such injuries. ⁴⁹⁵ Upon being returned summoned, Hullcoat moved for judgment of non pros for want of jurisdiction in that court, assigning as a reason therefor, that “at the time this suit was brought he did not, nor does he now reside in Baltimore City; nor was he then nor is he now engaged in any regular business or employment in said City, but that he now resides and at the time of issuing the summons in this case he did reside in Darlington, Harford County, and that no summons has been issued against him and returned ‘non est’ in Harford County.” A demurrer to that motion having been overruled, the trial court proceeded to hear testimony, from which it appears that the defendant had since 1936 lived at Darlington, Harford County, Maryland, upon a farm on which he kept race horses, both for himself and others; that since that date he had raced them at tracks in different parts of the country, including Maryland, several New England States, New Orleans and Arkansas. For several years he had raced at Pimlico, also at Havre de Grace and Timonium.

Pimlico held two events a year, the spring meeting lasting twelve days, and the fall meeting thirteen days. It is further shown that Hullcoat did not race at Pimlico in the fall of 1937, his connection with the fall meeting having been limited to attendance as a spectator on óne or two occasions. When racing horses at such meetings, whether at Pimlico or elsewhere, Hullcoat maintained quarters at some hotel or rooming-house convenient to the track. Section 157 of article 75 of the Code, providing that no person shall be sued out of the county in which he resides until he has been returned non est on a summons issued therein, is qualified to the extent that “any person who resides in one county but carries on any regular business, or habitually engages in any avocation or employment in another county, may be sued in either county, whether before a justice of the peace or in a court of law or equity * * *.” The word “avocation” was not used in the motion for judgment of non pros, and its omission is urged by ap ⁴⁹⁶ pellant in support of the demurrer.

Therefore, the narrow question presented by the demurrer is whether that word and the word “employment,” as they appear in the statute, were used synonymously. If the words were so used, it is conceded that the court’s action in overruling the demurrer was proper. , In support of his contention that the word “avocation” was not so used, appellant relies, first, upon the fact that the words are