Weitzel v. List

Pattison, J., delivered the opinion of the Court. In this case George List, the appellee, was struck and knocked down while walking across Madison Street, at Port Street, in the City of Baltimore, by an automobile driven by one of the appellants, William F. Weitzel, agent of the other appellant, Edward W. Weitzel, the owner of the automobile. The appellee brought suit against the Weitzols for the personal injuries he thereby sustained, and recovered judgment against them. It is from that- judgment, that this appeal was taken.

In the trial of the case exceptions were taken by the defendants only to the court’s rulings upon the prayers. There ³⁰ were three prayers offered by the plaintiff and eleven by the defendants. As shown by the record, “the court granted the plaintiff’s first, second and third prayers and granted the defendants’ first, second, third, fifth, sixth, seventh and eighth prayers, and refused the defendants’ A, B, 0 and fourth prayers, to which action of the court in refusing the defendants’ A, B, C prayers the defendants then and there excepted.” The defendants’ rejected A prayer was a demurrer to the evidence, while their B and 0 prayers asked for a directed verdict for the defendants because of the alleged contributory negligence of the plaintiff. It appears from the record that, after the court had refused the defendants’ A, B and 0 prayers, a conversation was had by it with the respective counsel for the plaintiff and defendants, in which the court asked counsel for defendants, “Is there any objection to the plaintiff’s prayers?” His answer was “Ho.” The plaintiff’s counsel was then asked if he had any objection to the defendants’ prayers.

In his answer thereto he interposed objections to several of them. His objections to' one of these prayers was removed by the defendants’ counsel changing it to meet the objection made. The objections made by the plaintiff’s counsel were confined to the defendants’ numbered prayers, and no allusion was made, either by the plaintiff’s counsel or the court, to defendants’ A, B and 0 prayers. As a result of the discussion between the court and plaintiff’s counsel, the latter’s objections were removed as to all the prayers of the defendants, except the first and fourth, whereupon the court refused the fourth and granted the first prayer.

It was then,, as disclosed by the record, that the defendants excepted only to the “action of the court in refusing the defendants’ A, B. and C prayers.” It is contended by the appellee that, because of the answer of defendants’ counsel to the court’s inquiry if he had any objection to plaintiff’s prayers, the defendants’ A, B and 0 prayers should not have been considered, for the reason, as. claimed by the plaintiff, that such answer gave to his prayers the force and effect of conceded prayers, and, as those prayers ³¹ submitted tbe case to- tbe consideration of tbe- jury, tbe defendants’ A, B and C prayers, asking for a directed verdict for the- defendants, should not have been granted. It has been held by this court from an early period that a conceded prayer becomes the law of the case (Balto. & O. R. Co. v. Resley, 14 Md. 424 ), and this is so whether the proposition of law contained in the prayer, and agreed upon by the parties, is right o-r wrong, and it is binding alike upon the parties and the co-urt. Baugher v. Wilkins, 16 Md. 35 , 77 Am. Dec. 279 ; Phila., W. & B. R. Co. v. Harper, 29 Md. 339 .

Consequently, any prayer offered in the case which is shown to be- inconsistent with such conceded prayer should not be granted. Rosenstock v. Ortwine, 46 Md. 388 ; Consolidated Ry. Co. v. State, use of O’Dea, 91 Md. 510 , 46 A. 1000 ; Balto., C. & A. Ry. Co. v. Kirby, 91 Md. 313 , 46 A. 975 ; Phila. & Balto.

R. Co. v. Holden, 93 Md. 419 , 49 A. 625 ; Hillers v. Taylor, 116 Md. 172 , 81 A. 286 ; Groh v. South, 119 Md. 302 , 86 A. 1036 ; Smith v. Brown, 119 Md. 248 , 86 A. 609 ; City & Sub. Ry. of Wash. v. Clark, 128 Md. 284 , 97 A. 996 ; Kelso v. Rice, 146 Md. 276 , 126 A. 93 ; Prince George’s County v. Timmons, 150 Md. 522 , 133 A. 322 . The question in this case, however, is not the effect of conceded prayers, but whether those of the plaintiff’s, as claimed by him, are in fact conceded prayers and are to- be so treated. The prayers of both the plaintiff and defendants were submitted to the court without any concessions by either of the parties, and it was not until the court had decided and announced that it would reject the defendants’ A, B and O prayers directing a verdict for the defendants, that their counsel was asked if he had any objection to- plaintiff’s prayers.

His answer was made with the knowledge acquired from the court that these prayers were not to be granted, .and that the case would be submitted to the jury for its consideration. He, we think, was justified in assuming that, in answering the question asked him, he was. merely stating his opinion as to the