State Ex Rel. Carter v. Phillinger

Offutt, J., delivered the opinion of the Court. George W. Mowen, a resident of Baltimore City, on .December 21st, 1915, owned an automobile and employed J. Roy Phillinger, a, chauffeur, to operate it. On that day Phil-linger, with his employer’s, permission, took the car1 for the purpose of getting" a Christmas tree. On his way he¡ called at the house of his mother, where he met Mrs. Retta S. Carter, his sister, and her son, Harry O. Carter, then nineteen years of age.

Mrs. Carter lived at Sykesville and had earlier in the day come to her mother’s home in an automobile driven by her son, Harry. While Phillinger’ was at his mother’s, home it was arranged that Harry C. Carter, his nephew, should join him on the trip for the Christmas tree, after he had driven some members of his family in their car “down town.” Carter accordingly drove his car to the corner of Howard and Saratoga streets, where he left it and got in the automobile driven by Phillinger, who had followed him. They then went to1 the home of Air. William M. Gill, Phillinger’s father-in-law, with whom he boarded, and h© too joined Phil-linger on his expedition.

The three then got in the Mowen ear and proceeded out the Frederick Road by way of Ellieott City. They stopped in Ellieott City for a short time and, when they left, Phillinger was on the front seat, driving, and Carter and Gill on the rear seat, Carter being directly behind ³⁶⁸ Phillinger. When they reached a point on the Frederick Road near the Seventen Mile House, about seven miles west of Ellicott City, the left rear wheel of the automobile collapsed, the car overturned and its three occupants were thrown out. Phillinger and Gill apparently were not seriously hurt, but Garter was almost instantly killed.

On the 19th of the following August Robert W. Garter, the equitable plaintiff, filed his declaration in the Baltimore City Court against Phillinger and his employer, George W. Mowen, in which he charged that the accident was caused by the reckless, dangerous and unlawful speed at which it was driven by Phillinger, who was at the time the employee and chauffeur of the defendant Mowen, and that Harry O. Carter, the son of the equitable plaintiff, entered the automobile at Phillinger’s request. The case came on in due course for trial and the verdict and judgment being against the plaintiff, the.present appeal was taken. The record contains twenty-four exceptions, all of which, with the exception of the twenty-fourth, relate to rulings upon questions of evidence. The case was tried in the Baltimore City Court before the Honorable Walter I. Dawkins, the judge of that court, but these exceptions were signed by the Honorable Carroll T. Bond, under the circumstances set forth in the following statement, which is certified in connection with the exceptions : “The following exceptions are signed by the Honorable Carroll T. Bond, Judge of the Baltimore City Court, at the request of the appellant (leaving to the decision of the Court of Aj>peals the question of the propriety of his doing so under the Act of 1922, chapter 418), the Honorable Walter I. Dawkins, the judge of said court before whom such case was tried being beyond the seas and unable by reason thereof to sign the exceptions allowed by him in the trial of said case, within the time limited by law, the evidence at said trial being taken down by the court stenographer in ³⁶⁹ notes and by him transcribed, the Honorable Carroll T. Bond being satisfied, by agreement of counsel, that the hills of exceptions hereinafter allowed are true hills of exceptions as allowed by the Honorable Walter I. Dawkins during the trial of said cause, as follows When fche case readied this Court, .1.

Roy Phillinger, one of the appellees, moved. to dismiss the appeal on the following grounds: “(1) Because the bill of exceptions contained in the record was not signed by the Honorable Walter I. Dawkins, Judge of the Baltimore City Court, before whom said ease was tried and by whom said exceptions were allowed. “(2) Because the Honorable Carroll T. Bond, an Associate Judge of the Supreme Bench of Baltimore City, who signed the plaintiff’s bill of exceptions, contained in the record, took no part in the trial of said caso, and had no right, warrant or authority under the laws of the State of Maryland to sign said bill of exceptions. “(3) Because the provisions of chapter 418 of the Acts of .1922 are not applicable to the facts of this case. “(4) Because it does not appear that Judge Dawkins, before whom, said case was tried, was by reason of death, sickness or other disability or the expiration of his term of office unable to sign said hill of exceptions.” This in (it ion must be overruled. That part of chapter 4-1.8, Wets of 1922, which is relevant to the question before us., reads as follows: “In case the judge before whom the cause has heretofore been or may hereafter he tried is, by reason of death, sickness or other'disability, or by reason of the expiration of his term of office, unable to hear and pass upon the motion for a new trial and allow and sign said' hill of exceptions, then the judge who succeeds such trial judge, or any other judge of the court in ³⁷⁰ which the cause was tried, holding such court thereafter, if the evidence in such cause has been or is taken iu stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion and allow a true bill of exceptions, shall pass upon said motion and allow and sign such hill of exceptions; and Ms ruling upon such motion and allowance and signing of such hill of exceptions shall he as valid as if such ruling and allowance and signing of such hills of exceptions had been made by the judge before whom such cause was tried.” The plain and obvious purpose of this statute was to meet just such exigencies as the one with which the appellant in this case was confronted when he undertook to. perfect his appeal. As the law stood prior to the passage of that act, only the judge or judges who- presided at the trial could sign a bill embodying an exception reserved to any ruling made in. the course of the trial. State, use of Samuel, v. Weiskittel, 61 Md. 48 ; Gross v. Wood, 117 Md. 362 ; Preston v. McCann, 77 Md. 30 ; 2 Poe, Pl. & Pr., sec. 323; and if for any reason, the judge or judges who presided were unable to sign the exceptions, the appellant, although he may have been without fault, lost his right of appeal and was without remedy, except such as was afforded by a new trial with the attendant delays and expenses.

Notwithstanding the. occasional hardship- incident to its operation, that rule was a wise and reasonable precaution to insure an accurate record under the conditions prevailing at the time it was adopted. Statute 13, Edward I, upon which it rested, was adopted at a time when often the only record of the evidence taken at the trial of causes lay in the memories of the judge and the counsel and in the notes taken by them. But under modern practice, where the evidence is recorded as it is given in shorthand and accurately transcribed, a record is made of the evidence and all proceedings in reference thereto-, far more accurate and complete than the memories of the presiding judge and the counsel in ³⁷¹ the case, aided by such notes as they have taken, could bave possibly furnished, and with the introduction of that practice the reason for the rule disappeared and the rule itself became an unreasonable anachronism. It was to remedy that condition that the statute in question was adopted, and being remedial in its character it should be liberally construed to give effect to the purpose and intent of the legislature. 25 R. C. L., page 1077; Ordway v. Cent.

Nat. Bank, 47 Md. 241 . Coining now to the facts and the statute before us, it appears. that when the appellant desired to submit the exceptions in this case1 to the judge who tried it, for his signature, it ivas found that he was beyond the seas, and could not possibly return to sign them within the time limited by law for transmitting the record. It was’ suggested that the appellant might have submitted them to him before he went beyond the seas, and that he was guilty of laches, in not having; done so., but a sufficient answer to that contention is found in the language of the Court in Gross v. Wood, supra, where it is said: “It is true that Judge Shakp could have signed it had it been presented to him between the 10th and 17th of January, but said appellee was not required to: have it prepared by that time, and, so far as the evidence shows, he had no reason then to suppose that Judge Shakp would not be able to sign it later.” And in our1 opinion he was n:ot, at the peril of being charged with laches, bound to present the exceptions for the consideration of the court within any period of time less in duration than that limited by law for the purpose, and exceptions presented on the last day of the period possessed the same incidents and should be considered and treated in the same manner as if presented on the first day of the period.

When the appellant presented his exceptions in the court where the case was tried, the judge who presided at the trial was beyond the seas, and was for that reason unable to sign them. The question, therefore, is whether his absence came within the phrase “other disability.” “Other disability” is used in apposition with “death” and “sickness.” ³⁷² and was manifestly nsed to describe a situation in which, owing to hi© absence or physical disability, the presiding judge could not sigh the exceptions which he had allowed. Absence beyond the seas was a “disability” just as absence as a result of illness was a “disability,” and when it was said that Judge Dawkins was not able to sign the exceptions because he was beyond the seas, it was equivalent to saying that he could not sign them because of a disability “other’” than death or sickness. Any other construction would be over technical and strained.

What the act sought to do was to provide'for the signing of bills of exceptions by another judge, where for any reason the judge who tried the case could not sign them. There is no possible reason why a litigant should lose his right to his exceptions in the event that the judge before whom his- case- was tried resigned or went beyond the seas, hut should retain it if the judge died or became ill, and the- Legislature could have intended no such absurd result. The plaintiff offered one prayer, which stated the measure of damages, applicable to the case, which was granted. Phil-linger offered twelve prayers, of which the court granted the third, fourth, fifth, sixth, ninth and tenth and refused the others.

Mowen offered seven prayers of which only the second, fourth, fifth, sixth and seventh were granted. No objection was urged in this Count to the granting' of the third, fourth, fifth, sixth and tenth prayers offered by Pb.illingqr, and the second, fourth, sixth and seventh prayers offered by Mowen, and as to those prayers it is sufficient to- say that we have discovered no error in -the rulings as to them. It remains therefore for us to consider Phillinger’s ninth and Mbwen’s fifth prayers, and it is against these instructions that the attack of the appellant is directed. By Phillinger’s ninth prayer the jury were instructed: “Even though they find from the evidence that this defendant was driving the automibile mentioned in the evidence at an excessive rate of speed just before and at the time of the happening of the accident mentioned in the evidence, yet, if ³⁷³ they further find that the deceased, H'arry Carter, was riding-in. said automobile, while it was being so driven, and did not object to or protest against the rate of speed at which said automobile was being driven and the jury find that by his failure to so object or protest he acquiesced in the speed at which said automobile was being driven, and the jury further find that the excessive rate of speed at which said automobile was being driven just before and at the time of the accident was the proximate cause1 of the death of the said Harry Carter, that then the said Harry Carter was guilty of negligence which directly contributed to his own death and the plaintiff in this case is not entitled to1 recover and the verdict must be for this defendant.” This prayer, it seems to us, fairly and correctly defines the relative rights, duties and responsibilities of a passenger in an automobile and the driver whose negligent operation thereof results in injury to the passenger.

It would be unreasonable, we think, to hold that a passenger in an automobile, who knew that it wias being driven at a speed so excessive as to- endanger the lives of persons in the lawful use of the public highways of the State as well as the occupants of the machine, and who so far acquiesced in, .approved, and participated in the conduct of the driver, 'that he made no protest or objection to it when he-could, if he had wished 1» have done so, was not himself guilty of negligence directly contributing' to the injury complained of. If he knew that the speed at which the ear was being driven was so great as to imperil the lives, and safety of its