Western Union Telegraph Co. v. State ex rel. Nelson

Page, J., delivered the opinion of the Court. This action was brought against the “ Western Union Telegraph Company,” and “ The City and Suburban Railway Company,” to recover damages for the alleged neglect of the defendants, whereby one Michael Nelson lost his life. In the narr. and summons the Telegraph Company is referred to as “ The Western Union Telegraph Company,” but in the bill of particulars, filed with the narr., the-words ■“a corporation of the State of New York,” are appended to the corporate name. The summons was served on Richard Bloxham, “ its manager.” During the trial, it appeared from the evidence that there are two companies ; one, whose corporate name is “ The Western Union Telegraph Company,” a corporation of the State of New York, and another whose corporate name is “ The Western Union Telegraph Company of Baltimore City,” a corporation of the State of Maryland.

Richatd Bloxham (on whom the writ was served), is the general manager of the former in this State, and the president and manager of the latter. The evidence established the facts, that the pole on which the fatal wire was suspended, is the property of the Maryland corporation, and that the New York Company neither owned nor controlled poles in that vicinity. Thereupon, the counsel for the plaintiff asked leave to amend the declaration and bill of particulars to conform to the proof, and stated, at the time, that the Maryland •Company was the one intended to be sued and it was only because of his want of knowledge as to the correct name of the corporation, that the words “ of Baltimore City,” had been omitted. There being no objection, the leave was ³⁰⁶ granted and the amendment made.

Mr. Cross, who was the counsel for the defendants, then had his appearance entered for the Western Union Telegraph 'Company of Baltimore City, and filed the three following pleas, viz.: ist. The plea of limitations. 2nd. That the cause of action did not accrue within twelve months “ before the filing of the plaintiff’s amended declaration, by which it was made a party to the suitand 3rd. The general issue plea.

The plaintiff, having joined issue on the first and third of these pleas, moved to strike out the second; and the action of the Court in granting this motion constitutes the defendant’s second exception. It is contended on behalf of the Telegraph Company, that by the amendment a new party was made and was, in fact, so far as it was concerned, the equivalent of bringing a new suit; and therefore a plea which averred that the cause of action did not accrue within twelve months before the filing of the amended declaration, did not improperly set out that provision of the Code, which provides that actions like the present must be commenced within twelve months after the death of the deceased person. Code, Art. 67, sec. 3. But to this we cannot agree.

The 36th sec. of Article 75 of the Code provides that no action shall abate by reason-of the misnomer of a defendant, but the Court, at its discretion on suggestion, &c., or other proof to the satisfaction of the Court, that “ by mistake the plaintiff has sued in a wrong name or that the party summoned in virtue of said writ or action is in fact the party intended to be sued by such writ or in such action may at any time before judgment, direct the writ or any of the proceedings to be amended by inserting therein the true name” of any defendant. In this case, the summons was served on a person who was an officer of both companies, and upon him as manager of the defendant corporation. He was in fact the manager of both. The service was efficient to bring into Court either one of the companies.

Under the circumstances it might well happen that an attorney who ³⁰⁷ was closely connected with both, and knew the very slight differences in the two corporate names, might fall into error as to which company was intended to be sued, but if he did, his mistake could not operate ■ to deprive the plaintiff of his right, when he discovered there were two companies with names so nearly alike, of designating which of the two he was sueing. When, therefore, the suggestion of misnomer was made, with the statement that it was the Maryland corporation which was intended to be sued and the-Court, in its discretion, ordered the amendment to be made,, not for the purpose of adding a new party, but to correct, the name of a party actually summoned, the defendant could1 thereby acquire no right to interpose any other or different plea than it would have had if it had been correctly named in the first instance. If, upon the amendment being made, the ends of justice required further time, to enable the defendant properly to prepare its case, the Court had full power to order a continuance. It does not appear, however, ever, that the counsel for the defendant asked for or desired delay.

He could not have been surprised. The narr. disclosed that the negligence complained of, was in connection with a wire on Eastern avenue near Luzerne street, and Bloxham, who was manager of both companies, knew, or ought to have known, that the telegraph poles and wires in that locality were owned or controlled by the Maryland Company, and that the New York Company had none in that vicinity. He therefore must have known that it was the Maryland Company that was intended to be sued, and it did not require much mental acuteness to enable him to understand that the misnomer occurred by reason of the very slight difference in the two names. It is plain that the error of the plaintiff’s attorney was due to the fact that he did not know that the company he intended to sue had the words “ of Baltimore City ” as a part of its name, and as soon as he became better informed he so stated to the Court and prayed the amendment.

To hold, under such circumstances, that the amendment brought in a new party ³⁰⁸ and thereby enabled it to plead limitations, to be computed from the filing of the amended declaration and not from the commencement of the action, would be a gross injustice to the plaintiff. It follows from what has been said that we find no error in the second and fourth exceptions, or in the rejection by the Court of the second and third prayers of the Telegraph Company. By the fourth exception it appears that the defendants were not permitted to offer in evidence the charter of the New York Company. But it was not a party to the suit and the contents of its charter were wholly irrelevant to any of the issues before the Court or jury.

The first exception was not referred to in argument and we understand was abandoned. The remaining exceptions present for our consideration the several instructions granted and rejected by the Court, and this renders necessary a statement of the main facts of the case. On August 24th, 1893, Michael Nelson, a child of eleven years, while walking on Eastern avenue near Luzerne street, came in contact with a telephone wire which hung from a pole owned and controlled by the Western Union Telegraph Company of Baltimore City. Along that part of Eastern avenue the City and Suburban Railway Company operates one of its lines of electric railway.

Its iron poles are placed at intervals along the curb line, arid carry wires strung across the street to support the trolley wire in the middle of the street. Besides these, they also support the railway’s feed wires, which stretch from pole to pole along the street, over the curb line and parallel to it. The function of these feed wires is to supply electricity to the trolley wire, so that the potential of that wire may be always constant, and when the road is being operated they carry a voltage of about 500 volts, sufficient to produce upon any one receiving it serious injuiy or death. By means of a preparation of braided cotton, saturated with insulating material and covered with a water-proof compound, feed wires are kept insulated, so that when the insulation is prop ³⁰⁹ erly done and in good condition, there can be no escape of electricity.

If exposed, however, long to atmospheric influence it becomes depreciated and will not serve its purpose. Defects are also sometimes to be attributed to improper handling of the wire in the process of construction so that the covering becomes broken. The frictional contact of another wire rubbing against it would cause serious damage to the insulation and in such a case the current would commence to be carried off before the insulation was “probably absolutely worn through.” If imperfect insulation were due to such rubbing, so that the charged wire was laid bare or so worn as that the current found a path to the over-hanging wire, there would be 'no sparks at the point of contact, unless there was an “ arcing or air space” between the two. The defendant offered evidence tending to show that the particular feed wire was erected in 1893.

It was not contended that the insulating material was not of the best or that it was not originally put up in a proper manner. The defendants also offered