Pennsylvania Railroad v. Reeley

Parke, J., delivered the opinion of the Court. The first question on this record is the motion to dismiss the appeal upon the ground that the appellant failed to have the bills of exceptions filed within the time limited by law. The judgment in this case was rendered on January 11th, 1940, and the appeal entered on the following January 22nd. The record was received in this court on April 12th, 1940, which is within the statutory period of three months allowed.

Code 1939, art. 5, ³⁸ sec. 6. The trial of the instant case was had in the Superior Court of Baltimore City, and the procedure for the preparation and signing of the bills of exceptions is to be found in the Code Pub. Loc. Laws (1930), art. 4, title “Baltimore City,” sec. 316; Charter of Baltimore City (1938), sec. 411, pp. 304, 305.

By the provisions of the statute mentioned, the bills of exceptions might have been signed at any time within the period that any of the parties had “the right to file an appeal from the rendition of the verdict by the jury or the findings of the court upon the issue of fact in the cause.” Upon the filing of the order for appeal, the time for the signing is automatically extended until twenty days before the period within which it is required by the statute that the record shall be transmitted to the Court of Appeals, provided (1) that the party appealing or his counsel shall submit the bills of exceptions to the appellee, or his counsel, not less than thirty-five days prior to the time that the record must be filed in the Court of Appeals, for the purpose of amendment or additions to the bills of exceptions, and (2) that the appellee or his counsel, within ten days after said bills of exceptions shall have been submitted to him, shall return said bills of exceptions to the appellant or his counsel with such amendments or additions as he may desire, and (3) if this should not be done, the bills of exceptions shall be signed by the court as originally prepared by the appellant or his counsel. (4) If the appellee or his counsel should return the bills of exceptions to the appellant or his counsel, with his amendments or additions, as hereinbefore stated, the bills of exceptions with such amendments or additions shall forthwith be presented to the judge before whom the case was tried, who shall settle the same within five days thereafter. There is no controversy that there has not been a literal compliance with the terms of this statute. Nor is there any disagreement in respect of the focal dates.

The record had to be transmitted to the appellate court on or before April 22nd, 1940. It was filed ten days ³⁹ earlier, on April 12th. The time for signing the bills of exceptions was, therefore, April 2nd, provided the appellant or his counsel had submitted the bills of exceptions to the appellee or his counsel not later than on or before March 18th. The bills of exceptions were not submitted to the appellee or her counsel until March 26th, which was eight days in default.

A literal compliance with the provisions of the statute was, therefore, obviously impossible. The appellee was thereupon put to her election whether to accept or to refuse the submission. She chose to accept and thereby became estopped to raise the point of the appellant’s delay. Her choice carried all its necessary and obvious implications.

When the appellee made this election, it was with the knowledge that the delay of eight days had caused it to become impossible for the appellant to have the bills of exceptions signed within the successive periods of time allotted by the terms of the statute. The submission and acceptance on March 26th by the appellee of the bills of exceptions for the purpose of amendments or additions, and the necessity for their return to the appellant or its counsel, with such amendments or additions as may be desired, by the appellee, within ten days thereafter would, if the appellee should take the full allowance of ten days, extend the time for their return to April 5th, which is three days beyond the date when the bills of exceptions should have been signed, and which, moreover, excluded the five days assigned for the judge before whom the case was tried to consider and settle the proposed amendments or additions to the bills of exceptions. The appellee had no power to lessen the period of five days assigned by the statute to the court. She, consequently, realized that the only way the bills of exceptions could be signed within the statutory period prescribed was by the voluntary shortening by her of the period of ten days for revision, and returning the bills of exceptions, with the proposed amendments and additions desired, on or before March 28th.

Instead of employing the only means of having the bills of ex ⁴⁰ ceptions signed in time, the appellee consumed the full period of ten days and returned the bills of exceptions with the desired changes on April 5th. The appellee asserts that the full period of ten days was required because of the many modifications and additions to the bills of exceptions as prepared by the appellant. The appellee, however, had the original bills of exceptions when the election was made, and, so, was then aware of their content. It follows that by, her election the appellee surrendered the consequences of the appellant’s initial delay when cognizant of the full effect of her act.

In reliance on this election and the appellee’s conduct in forthwith accepting, examining, correcting, and re-stating the bills of exceptions, the appellant did not apply for any extension of time for the submission and the signing of the bills of exceptions until after the time for this had elapsed. United Rys. & Electric Co. v. Dean, 117 Md. 686, 704, 705 , 84 A. 75 . On April 6th, the appellant filed its petition wherein it is stated that the bills of exceptions with amendments and additions were not returned until April 5th, hence it was impossible for the bills of exceptions to be signed within the period named by the statute. The petition prayed for an order granting an additional period of ten days for the submission to counsel and the signing by the court of the bills of exceptions.

An answer was filed by the appellee which took the position that the provisions of the statute were mandatory and, therefore, the court could not grant an extension nor sign the bills of exceptions. The petition contained matters in explanation and extenuation of the delay, and the answer denied them. Testimony was taken before the court, and the court was moved to pass an order on April 10th as of March 17th, extending the time for submission of bills of exceptions to appellee’s counsel to March 28th, and the time for signing the bills of exceptions to April 12th. Qn April 10th, the court formally approved the bills of exceptions on this record.

The appellee reserved an exception to the signing of the order and of the bills of exceptions. ⁴¹ In the view taken by this court, it is not necessary to analyze and comment on the testimony offered by the parties. It was sufficient to convince the judge at nisi prius that the action taken was required. The indisputable record of the course of the procedure establishes the election of the appellee to disregard the initial provision of the statute as to the time for the filing of the bills of exceptions, and to proceed as if there had been no delay. After this election the appellee revised the bills of exceptions by modifications, change and additions and meanwhile retained the draft submitted by the appellant.

Such independent and distinct conduct and effort were only reconcilable with the conclusion that the appellee had abandoned the objection to the signing of the bills of exceptions on the ground of the patent delay. The appellant was justified in this belief, and the appellee cannot now repudiate her election to the prejudice of the appellant, which had relied and acted upon her indicated choice. It is true that when the appellee returned on April 5th, the submitted bills of exceptions, along with the new draft of the bills which the appellee had prepared, she advised the appellant for the first time that an objection would be made to the signing of the bills by the court for the reason that the bills of exceptions had not been submitted until March 26th. This delay in so advising the appellant effectually prevented the appellant from having the bills of exceptions filed within the time prescribed.

Having chosen one alternative, the appellee may not, under the circumstances stated, later pursue the other alternative, to the detriment of the appellant whose subsequent actions were governed by the belief that the appellee was accepting the bills of exceptions as having been timely submitted. Bower on Estoppel by Representation, sec. 249, pp. 233-241; Wright v. Bagnell and Sons, Ltd., [1900], 2 Q. B. 240, 244 C. A. The argument advanced in refutation of this doctrine is that it does not apply because the periods of time fixed in the statute are not directory but mandatory. The statute deals with a matter of practice which is not easily ⁴² accommodated to rigid regulation. A certain degree of adaptation according to exigent circumstances best comports with procedural restrictions.

When the statutory interlocking schedule of time for the successive stages of the preparation, submission, alteration, correction and amendment, and, finally, of the approval by the judge of the bills of exceptions, is apprehended and considered, it is plain that the subject matter of the legislation does not indicate that the provisions are such that any deviation in the times prescribed will render the bills of exceptions illegal and void, as would be the result if the provisions of the statute were intended to be mandatory. Bond v. Baltimore, 118 Md. 159, 166 , 84 A. 258 . The statute was designed to provide for the prompt, accurate and adequate framing of bills of exceptions. There is no provision which declares the result of a failure to comply with the exact timing set forth.

The mode is clearly more important than the limitation of time. The terms of the statute afford decisive evidence that the provisions are not mandatory but directory. For instance, one of the provisions is that, should the appellee or his counsel fail to return the submitted bills of exceptions within ten days of their submission to him, the bills qf exceptions shall be signed by the court as originally prepared by the appellant or his counsel. Such a direction is clearly not mandatory.

If it were, the court would have to sign the bills of exceptions as thus presented, notwithstanding the bills of exceptions as drawn were framed in clear violation of the provisions of article 5, section 12, of the Code, with respect to the preparation of bills of exceptions and the imposition upon the court of the duty to require the exceptions to be prepared as prescribed by section 12. Another provision of the local statute is that the bills of exceptions, after a compliance with the statute by appellant and appellee, “shall forthwith be presented to the judge before whom the said case was tried, who shall settle the same within five days thereafter.” Again, this provision is directory and not mandatory or it would be in conflict with article ⁴³ 5, section 13 of the Code, which provides for the allowance and signing of bills of exceptions by another judge if the one before whom the cause was heard is unable to do so by reason of the expiration of his term of office, or death, sickness or other disability. State v. Phillinger, 142 Md. 365, 369 , 120 A. 878 . In Wegefarth v. Weissner, 132 Md., 595 , at page 602, 106 A. 854, 857 , the court said, in reference to like statutory provisions: “To hold that-they are mandatory would require the court to sign the bills of exceptions nothwithstanding they were not properly prepared by the appellant, or might deprive the appellant of the benefit of his exceptions, or of his right of appeal, because of his inability to present the bills of exceptions to the judge, who may be sick or absent, or because of the inability of the judge, by reason of sickness or pressing engagements, to sign them within the five days.” These and other reasons which might be stated have contributed to the conclusion, which is stated in the former decisions of this court, that the provisions of the particular statute now at bar are directory and not mandatory.

Christian v. Johnson Construction Co., 161 Md. 87, 101 , 155 A. 181; Baltimore Paint & Color Works v. Automobile Electric & Parts Co., 173 Md. 210, 216 , 195 A. 558 ; United States Fidelity & Guaranty Co. v. Williams, 148 Md. 289, 297 , 129 A. 660 ; Stiegler v. Eureka Life Ins. Co., 146 Md. 629, 657-659 , 127 A. 397 ; Wegefarth v. Weissner, 132 Md. 595, 598-604 , 106 A. 854 ; In re Ingoglia’s Petition, 161 Md. 207 , 155 A. 305 . The decisions cited differ one from another and from the cause at bar, in respect to some facts, but unequivocally determine that the provisions of the statute here under consideration are directory. While not identical, the facts of the cases cited are so analogous to those on the record of the pending appeal as to make these cases conclusively in point.

The terms of the statute in question are designed to effect method, system, and uniformity in time with reference to bills of exceptions. The non-compliance here invoked does not deprive the appellee of any right. The times severally designated may, with im ⁴⁴ punity, be modified by consent of the parties, or from necessity by the court, since such a departure relates to what is here incidental to the legislative aim and purpose and is not in defeat or evasion of its essential objective. In other words, since the statute at bar is directory, its provisions are not imperative, but are to be reasonably enforced.

So, where the act or thing is performed, but not in the time or in the precise mode indicated, it will be sufficient if what is done accomplishes the substantial purposes of the statute. Thus the court may for good Cause shown modify the times within which prescribed acts may be done. These general principles are exemplified in the decisions with regard to the preparation and signing of bills of exceptions. The rules of court and the statutes passed in their regulation have varied and, necessarily, their construction discloses a corresponding variety.

A general rule which is deducible from the decisions is that, if the parties consent, the bills of exceptions may be prepared and signed after the expiration of the period specified. Supra; and 2 Poe, Pl. & Pr., sec. 319, p. 290; Buffington v. Davis, 33 Md. 511, 512 ; Horn v. Buck, 48 Md. 358, 366-369 ; Gwynn Oak Park v. Becker, 177 Md. 528, 531, 532 , 10 A. 2nd 625. The consent may be found in agreement, in waiver, or implied in an estoppel. Supra.

In the present case the appellee’s consent is based on estoppel, as established by the facts and circumstances found on the record and referred to in this opinion. For the reasons here stated the motion to dismiss must be denied. 2. The important question in this case is whether the dead man, George A. Reeley, was engaged at the time of his death in interstate commerce. There is no controversy that he was then a servant of the Pennsylvania Railroad Company, a corporation whose business is the interstate and intrastate carriage of freight and passengers for hire, and that while working as a freight brakeman in its service and in the course of his employment he was accidentally killed on the evening of November 21st, 1937. ⁴⁵ A claim for compensation was filed with the State Industrial Accident Commission of