Owings v. Dayhoff

Offutt, J., delivered the opinion of the Court. This is an appeal from a judgment for the plaintiff in an action brought by Eoscoe Dayhoff against Henry S. Owings, administrator of John W. Lacy, late of Howard County, deceased, to recover for services rendered and material furnished the defendant’s decedent in the repair and operation of automobiles owned by said decedent, and for the hire of automobiles furnished to him by the plaintiff. John W. Lacy was a physician, who settled in Lisbon, Howard County, some thirty years ago, and lived and practiced his profession there from that time until his death in ⁴⁰⁶ January, 1928. He was unmarried and made his home with Vernon Fowler, and occupied a bed room and maintained an office in his residence in that village during that entire period.

When he first came to Lisbon, Dr. Lacy drove a horse and buggy, but, when automobiles came into general use, he turned to them and at various times owned and operated a number of different cars. It may be assumed from the testimony that the usage to which these machines were subjected was rough, and that to keep them in running order more or less expert assistance was essential. The doctor apparently recognized the conventions of the old school of country physicians, and no road was too poor and no weather too bad to keep him from answering the calls of his patients; he appears to have been an indifferent mechanic, never acquired an adequate working knowledge of the care and repair of automobiles, and as a result his cars were often out of repair. Eoscoe Dayhoff, the plaintiff, is a garageman, and from 1919 to 1927 was engaged in that business in Lisbon.

His garage was about two hundred' and fifty yards from the Fowler home where Doctor Lacy resided, and his contention is that, beginning in 1921, Dr. Lacy from time to time called on him for assistance in operating his, Lacy’s, automobile, to furnish an automobile and chauffeur to carry him from place to place in attending patients, or to supply him with gasoline, oil, and automobile parts and accessories. After Dr. Lacy’s death in 1928, Dayhoff presented to his administrator a bill for these services and supplies, aggregating $2,659.35, which the administrator refused to pay, and Dayhoff thereupon brought this action. The declaration, filed April 20th, 1929, contains the six common counts, and accompanying it was an account or list of particulars in the following form: “John W. Lacy, Dr. To Eoscoe Dayhoff, To services rendered $2,500.” On July 6th, 1929, the defendant demanded further particulars of the plaintiff’s claim, and, in response to that demand, the plaintiff filed a bill of particulars, which contained a detailed statement of charges for labor and supplies furnished Dr. Lacy in 1927 and January, 1928, aggregating $159.35, and also the following statement: ⁴⁰⁷ “For services rendered, hire and use of automobile and gasoline furnished by Roscoe R. Dayhoff to John W. Lacy, deceased, covering period front September 1, 1921, to January, 1928 ............................! $2,500.00” To that bill the defendant excepted on the ground that the statement last quoted was too general, in that it failed to state “how much of the twenty-five hundred dollars ($2,500) therein charged is for ‘services rendered,’ how much thereof is for ‘hire and use of automobile,’ or how much thereof is for ‘gasoline furnished,’ nor does said bill of particulars set forth with the particularity required by law the dates when the several matters and things therein charged were furnished.” These exceptions were overruled, and the defendant then pleaded the general issue and limitations. The case was tried on those issues before the court and a. jury, and at the conclusion of the trial a verdict returned for the .plaintiff for $2,159.35.

This appeal is from the judgment on that verdict. The record contains sixteen exceptions, of which fourteen relate to rulings on questions of evidence, one fi> the court’s rulings on the prayers, and one to its ruling in reference to a statement of counsel to the jury. The first question submitted by the appeal is whether appellee’s bill of particulars was sufficiently specific, and that relates only to the item of $2,500, for it is conceded that so much of the bill as related to the item of $159.35 was sufficient. Code, art. 75, sec. 28, subsec. 107, provides that: “Either party may use the common law forms or the forms herein-before given, at his election; and either party may require a bill of particulars where the pleading is so general as not to give sufficient notice to the opposite party of the evidence to be offered in support of it.” That part of the statute is declaratory in character, and announced a rule of procedure long recognized in this state (Black v. Woodrow, 39 Md. 212 ), and it applies wherever a pleading is so general as ⁴⁰⁸ not to give the opposite party sufficient notice of the evidence to be offered in support of it.

Or, as stated in Bullen & Leake, Pr. & Pl. (3rd Ed.), 56: “The object of the particulars of demand is to control the generality of the declaration, to restrict the plaintiff at the trial, and to give the defendant such information as may enable him to frame his defense or pay money into court if necessary. Kenyon v. Wakes, 2 M. & W. 767.” In Randall v. Glenn, 2 Gill, 436 , it was said: “The law seems well settled upon authority, that in actions of this class, the defendant may at any time before he has pleaded to' the merits, if the declaration do not disclose the particulars of the plaintiff’s demand, call on plaintiff to exhibit them.” To the same effect was Carter v. Tuck, 3 Gill, 250 . And in the more recent case of Cairnes v. Pelton, 103 Md. 44 , this statement appears: “The office and legal effect of a bill of particulars is to inform the opposite party of the precise nature and extent of the claim which the plaintiff intends to rely upon under each and every count of the narr., and to confine his evidence to the claim thus stated.

Carter v. Tuck, 3 Gill, 250 ; Hall v. Sewell, 9 Gill, 147 ; School Commissioners v. Adams, 47 Md. 356 .” And to the same effect are Newbold v. Green, 122 Md. 652 ; Stocksdale v. Jones, 133 Md. 178 ; Mueller v. Michaels, 101 Md. 188 . The bill or list of particulars which must be furnished in response fi> such a demand is analogous to the account which must be filed with the declaration in cases brought under the several rule day or speedy judgment acts in force in this state, and to those provisions of the attachment statutes which require the attaching creditor to produce the account or other evidence showing the indebtedness of the defendant. Mueller v. Michaels, supra. Therefore cases dealing with the sufficiency of a bill or list of particulars filed in purported compliance with the provisions of some statute or rule of law requiring a claimant to state the particulars of his claim are ■apposite, whether they be in cases at common law, under speedy judgment acts, or in attachment.

Thus dealt with, ⁴⁰⁹ it may be admitted that the decisions determining what is-required to gratify the exactions of the rule are not wholly consistent. But the evolution of the rule as marked in the decisions of this court indicates a strong and decided tendency to require a substantial compliance with the terms of the rule, as stated in Cairnes v. Pelton, supra. In Cox v. Waters, 34 Md. 461 , it was held that a statement that the defendant was indebted to the plaintiff “To cash loaned him at sundry times on call $7,500,” sufficiently stated the particulars of the claim. In McDonald v. King, 125 Md. 592 , a suit under the Speedy Judgment Act of Baltimore City, it was held that the account was insufficient because it failed to disclose why or how the defendant was liable for the items charged; in Stewart v. Katz, 30 Md. 346 , an attachment case, it was said, in referring to an account of merchandise sold to the defendant by the plaintiff: “It has also been objected that the account produced showing the indebtedness of Long, is not such as the law requires, because it only shows the amount claimed, and is not sufficiently explicit and certain in its items and details.

An examination of it, however, shows that it is wanting' in none of these particulars. It is made out in the mode usually adopted by merchants engaged in extensive business, and is perfectly intelligible.” In Mueller v. Michaels, 101 Md. 188 , it was held that the following statement of particulars: “Frank Michaels and John Kirby to Arthur Mueller, For cash money received from the plaintiff in the month of June, 1904, by the defendants in the sum fo $285.00,” was insufficient because it failed to show any liability of the defendant to the plaintiff; and in Stocksdale v. Jones, 133 Md. 177 , it was held that a statement that “the defendants are indebted to the plaintiff for money had and received from the plaintiff’s intestate for the use of the plaintiff’s intestate, as follows,” was not a sufficient statement of the particulars of the plaintiff’s claim, because it failed to show what the suit was about or how the money was received. As a result of the statute, of these cases, and other decisions of this court, the ⁴¹⁰ rule has now become firmly established that no statement of the particulars of a claim asserted in any pleading furnished in response to a proper demand will be regarded as sufficient, unless it shows the precise nature and extent of the claim, and affords the opposite party such information as will enable him to frame his defense. Applying that rule to the bill of particulars under consideration, its insufficiency is manifest.

The claim includes three separate and distinct items, (1) services, (2) hire and use of automobile, and (3) gasoline, which are all included in a single gross charge. There is nothing in it which offers the slightest information as to the character, extent, or value of the services, of the quantity or price of the gasoline, or of the charges for the “hire and use of automobile.” Such a statement was not only too general, but was so confusing as rather to embarass than aid the defendant in framing his defense. .The exception to it should have been sustained, and since the failure of the court to take that action compelled the defendant to1 go to trial without such knowledge of the plaintiff’s claim as under the law he was entitled to receive, it cannot be assumed that he was not injured by that ruling. Of the fourteen exceptions to the rulings of the trial court on the admissibility of evidence, only those which related to the opinions of certain experts as to the value of plaintiff’s services were stressed in this court, and while the others were not expressly abandoned, they were trivial in character, and the rulings as to them are certainly free from injurious error. The plaintiff made no attempt to supply any details or items of his $2,500 claim, but relied entirely upon the testimony of neighbors and patients of Dr. Lacy, and of neighbors, employees, and acquaintances of Dayhoff, who in substance testified that they had seen Dayhoff driving Dr. Lacy at all hours of the day and night, in all kinds of weather, and on good and bad roads; and that they knew that he was often called by Dr. Lacy either to drive his, Lacy’s car, to start it, ⁴¹¹ or to repair it, or to drive him, Lacy, in DayhofPs.automobile.

From the testimony it was impossible to say how much of DayhofPs time was thus occupied, how much gasoline he furnished Dr. Lacy, how much of the time he drove his own, DayhofPs car, and how much he drove Dr. Lacy’s car, how far he drove either, or how much time he spent in repairing or in starting the Lacy car. Such evidence afforded no legal warrant for estimating the value of the plaintiff’s claim on a time, quantity, or mileage basis, but the measure of his damages was fair compensation for one having plaintiff’s skill and equipment, who held himself ready at all times to place them at Dr. Lacy’s service, and which were accepted and used by Dr. Lacy in the maner and to the extent described in the evidence to which we have referred. With the record in that state, the plaintiff called two witnesses, 0. Edward Stem and John S. Barnes, to prove the value of his services.

Yeither of them appears to have had any direct knowledge of DayhofPs services, but they were examined as experts. Stem lived at Yew Windsor, in Carroll County, and had for some ten years been employed to drive automobiles for wages. He knew nothing about the prices prevailing in Lisbon for the hire of automobiles, but testified that at Yew Windsor, sixteen miles away, the charge for a driver and car ranged from twenty cents to thirty cents per mile, that those prices prevailed all around there, and that ho had driven hired cars in the neighborhood of Lisbon. Having stated that he had heard substantially all the testimony in the case, Stem was asked to express an opinion based on that testimony as to what would be “fair compensation for the services rendered, in light of what” he knew