United Railways & Electric Co. v. Winer

125 A. 61 | Md. | 1923

The appellees, Jacob Winer and Frank Winer, co-partners trading as J. Winer Son, brought suit on the 9th of February, 1923, in the Superior Court of Baltimore City against the United Railways and Electric Company, a corporation, to recover damages alleged to have been caused by the negligence of the defendant.

The declaration alleges that the automobile of the plaintiffs, while being driven in a careful and prudent manner, was "struck and run into by a car owned, leased and controlled by the defendant," and "being operated by the defendant, its agents, servants or employees, in a careless and negligent manner, * * * as a result of which the automobile of the plaintiffs was damaged, and the plaintiffs were put to great expense in having the necessary repairs made to said automobile and hiring another automobile in its place during the time said repairs were being made," c. The plaintiffs claim in the nar. damages to the amount of $1,500.

The defendant appeared by counsel, and on the 24th of February filed the following interrogatories to be answered by the plaintiffs:

"1. What other party or parties not disclosed by the record, is or are financially interested, with the plaintiff of record, in the result of the trial of this cause?

"2. What is the extent of his or their interest, and when and how was it obtained?

"3. If his or their interest was obtained through a paper-writing state the date of such writing and produce the same, or a certified copy of the same; if unable so to do, state in substance the terms thereof, to the best of your knowledge and belief, and in whose possession the said paper is.

"4. If there was any consideration for the transfer of said interest to said party or parties, state the nature and amount thereof."

On the 1st of March the plaintiffs answered the interrogatories as follows:

"1. The Employers Indemnity Corporation.

"2. Two hundred and fifty dollors; (b) By assignment in writing.

"3. Assignment dated January 18th, 1823, in possession of Employers Indemnity Corporation, provides that the said Jacob Winer and Frank Winer, co-partners, trading as J. Winer and Son, transfer and assign to the said Employers Indemnity Corporation, all claim to damages recovered against the above defendant, to the extent of $250.00.

"4. Cash consideration of $250.00 paid on account of damage to automobile as a result of accident sued upon."

After the answers to the interrogatories were filed, the defendant filed a motion for a "rule security for costs" on the plaintiffs, and the rule was laid. The defendant also filed a number of pleas and, on March 10th, the plaintiffs filed a motion to strike out the rule security for costs. At the hearing of this motion the defendant proved by Thomas B. Keavney that he was the resident agent of the Employers Indemnity Corporation, and that said corporation was a corporation of the State of Missouri, with its principal office and place of business in Kansas City, Missouri. On cross-examination the witness testified that said corporation had complied with the provisions of the Code authorizing it to do business in this State, and had filed a copy of its charter with the State Insurance Commissioner, c., and that he was the duly appointed agent of said corporation in this State. The court below sustained the motion of the plaintiffs to strike out the rule security for costs, and denied the rule, and from that ruling the defendant has brought this appeal.

The appellant relies upon chapter 382 of the Acts of 1900 (section 9 of article 24 of the Code), which provides:

"The defendant in any action may at or before the trial court have a rule on the plaintiff or plaintiffs to give security for the payment of the costs and charges which may be recovered against him or them in such action if the plaintiff or plaintiffs, or any of them, is not a resident or are not residents of this State at the time the motion is made for such rule; provided, that such rule shall be had only against a non-resident plaintiff or plaintiffs, or against a resident plaintiff or plaintiffs, who is an assignee or are assignees of or stand in the place of a non-resident plaintiff or plaintiffs."

In his analysis of this section, the learned counsel for the appellant contends, as stated in his brief, that a defendant is entitled to the rule security for costs against: "(1) a non-resident plaintiff or plaintiffs; (2) against a resident plaintiff or plaintiffs, who is or are assignee or assignees of a non-resident plaintiff or plaintiffs; (3) against a resident plaintiff or plaintiffs standing in the place of non-resident plaintiff or plaintiffs."

Even if we were to assume that that was the proper construction of this section, and that the Employers Indemnity Corporation could be regarded as a non-resident plaintiff, it would fail to bring the plaintiffs in this case within the terms of the statute. They are not the assignees of the Employers Indemnity Corporation, nor can they be said to stand in the place of said corporation. The plaintiffs' claim in their declaration is not only for the entire cost of repairing their automobile, but also for the loss they sustained by reason of having been deprived of the use of the same during the time such repairs were being made, while the assignment to said corporation of the damages to be recovered against the defendant is only to the extent of $250, the amount paid by it to the plaintiffs "on account of damage to" their automobile. In the case of Fisher v. City Dairy Co.,137 Md. 603, this Court said that "the measure of damages for injury to personal property, where the property has been damaged but not entirely destroyed, is the cost of repairing the property, together with the value of the use of the property during the time it would take to repair it."

Just what is the correct interpretation of, or the purpose sought to be accomplished by, the proviso in the section quoted, is not clear. It declares that a resident plaintiff shall be subject to the rule only in case he is the assignee or stands in the place of a "non-resident plaintiff." It is said in 6 Wordsand Phrases, p. 5397: "The word `plaintiff,' in a civil suit has as well a defined legal and technical meaning as the word `party to a suit.'" Black, in his Law Dictionary, defines the plaintiff "as a person or party who brings an action, who complains or sues any person in an action and is so named on the record." Like definitions are given in 30 Cyc. 1636, which are in accord with the generally accepted meaning of the term. The person in whose name the suit is brought is regarded as the plaintiff, and if the case is marked to the use of a third person, the cestui qui use is the equitable plaintiff, and the person in whose name the suit is brought becomes the legal plaintiff. Both are liable for the costs, and if either is a non-resident he may be required to give the security provided for in said section. Code, art. 26, sec 8; 2 Poe, Pl. Pr., sec. 212; State, use of Fallon, v. Layman, 46 Md. 190; Ruddell v. Green, 104 Md. 371; Wilson v. Williams, 106 Md. p. 672. The Employers Indemnity Corporation does not answer to any of these definitions. The suit was not brought by it, it is not named as plaintiff on the record, and the case is not marked to its use so as to make it an equitable plaintiff.

Under section 1 of article 8 of the Code, the assignee of a chose in action for the payment of money under an assignment in writing may maintain an action thereon in his own name, and where such an assignment is absolute and bona fide, there would seem to be no more reason for requiring a resident assignee who sues in his own name to give security for costs than any other resident plaintiff. If the assignee of such a chose in action brings suit in the name of his assignor, and the case is marked to the use of the assignee, they both become liable, as we have said, for the costs, and if either of them is a non-resident, the non-resident legal or equitable plaintiff may be required to give security for such costs. On the other hand, the assignee of a chose in action for tort must sue in the name of his assignor, and if the assignor is a non-resident, he can be required to give security for costs under the first part of section 9 of article 24 of the Code. 1Poe, Pl. Pr., sec. 432.

If the Legislature had intended to make a resident plaintiff subject to the rule in question whenever a non-resident has any interest in the result of the suit, however slight that interest may be, it could have said so in plain terms. But whatever may have been the purpose of the proviso in question, or may be its true construction, the plaintiffs in this case are not within the language employed, and we must therefore affirm the ruling from which this appeal was taken.

Ruling affirmed, with costs.