Volume 106 — Maryland Reports

) In the third bill of exceptions plaintiff’s counsel asked witness Orem this question: “Which of the two points would be the most important point for re-icing.that car and give reasons ?” In the fourth bill of exceptions the same witness was asked: “If the car had been re-iced at Wilkesbarre, Pa., and from your knowledge and experience in shipping goods of this ■ character., would it have carried all right?” In the fifth bill' of exceptions plaintiff’s witness Clogg was…

- Appeal from the Superior Court of Baltimore City (Stock-bridge, J.) The objection that the action was prematurely brought is applied by the defendant only to the plaintiff’s claim for indemnity for hernia. It is admitted that, as his claim for indemnity for consumption was thrown out by the company and all liability therefor denied, the plaintiff had the right to bring suit for that part of his claim immediately. This has always been recognized by the Courts. Norwich Trans.

<p>Appeal from the Circuit Court for Wicomico County (Holland, J.)</p>

<p>Appeal from the Circuit Court for Prince George’s County (Crane and Merrick, JJ.)</p> <p>The cause was submitted to the Court on brief by:</p>

<p> Right of Mother of Illegitimate Child to Inherit His Property </p> <p>The mother of an illegitimate child is entitled, under Code, Art. 46, sec. 30,40 the same share in the property, both real and personal of such child, dying intestate and without issue, as is the mother of a child bom in wedlock who dies intestate and without issue.</p> <p>The fact that the Act of 1868, ch. 199, providing that the mother shall inherit real and personal property from her illegitimate children in certain contingencies, is placed in the Code under the title, "Inheritances” does not limit its application to real estate.</p>

<p>Promise By Beneficiary in Death Benefit Certificate to Pay the Proceeds toa Third Person — Validity of Parol Ttust.</p> <p>When one who holds a life insurance certificate in a beneficial order, causes the same to be made payable to a certain person upon the faith of his oral promise to pay the proceeds to a third party, a valid trust is thereby created, which will be- enforced against the beneficiary named in the certificate.</p>

) This case comes clearly within the ruling in Joseph Brothers Company v. The Schoenthal Iron and Steel Company, 99 Md. 382. In that case the Court, after stating the facts, states as follows: “In point of fact this series of letters consisted of propositions and counter-propositions, and nowhere brought the parties to a distinct and definite conclusion.

) The whole evidence disclosed by the record, which in any view may be claimed to throw light upon the intention of the appellant at any period of its ownership of the property is found in the plat of 1845, the plat of 1853, and the mortgage deed of trust of 1873. The question is, therefore, whether either of these instruments alone, or all together, are legally sufficient to support an implication of an offer to dedicate the premises to the public.

<p>Appeal from the Circuit Court for Wicomico County (Holland, J.)</p>

) Upon whatever estate the collateral inheritance tax is imposed by the statute, (except the provisions contained in sections 130 and 131, which cannot be applied to the present case) it is imposed (1) as of the death of the testator or intestate; and (2) upon the value of the estate as then ascertained.

J.) This case is important to the appellant, in that, from the facts shown by the record an attempt is being made by the plaintiff to prevent forever the probate of the will, in order that the defendant may be deprived of the property left her by her late husband.

<p>Appeal from the Superior Court of Baltimore City (Niles, J.)</p>

<p>Appeal from the Circuit Court for Kent County (Crothers, and Adkins, JJ.)</p>

<p>Appeal from the Orphans’ Court of .Baltimore City.</p>

) The effect of the Acts of 1888 and 1902, is to prescribe a specified standard of development up to which real estate in the annex… Held: if there be no “specific provision of law, prescribing how and by what áuthority property in the annexed territory which has been brought within the conditions of the Act of 1888 warranting the imposition of the city rate of taxation is tó be put into that category upon the books of the Appeal Tax Court” that the Appeal Tax Court has…

<p>Appeal from the Circuit Court No. 2, of Baltimore City (Dobler, J.)</p>

<p>Sales — Assent to Delivery to Vessel not Designated — Acceptance of Bill of Lading — Evidence.</p> <p>The purchaser of goods directed them to be delivered to a certain ship captain and ship for transportation to him Upon the failure of this vessel to bring them, the purchaser soon afterwards directed them to be delivered to another vessel. The goods were delivered to the captain first mentioned, and the bill of lading sent to the purchaser, who kept the same without making any objection, and would have accepted the goods if they had been transported, but the vessel was wrecked in the course of its voyage. Held, that the purchaser had ratified the dedelivery of the goods to that vessel as made, and is estopped to sue for non-delivery, since the delivery to the carrier passed the title to the goods and put the risk of transportation on the purchaser.</p>

<p>Action Against County Commissioners for Non-Repair of Bridge — Misleading Instruction.</p> <p>While the plaintiff was driving over a county bridge, across a ditch, one of the planks broke. The horse stumbled over the obstruction, and plaintiff was thrown out and injured. After the accident, it was dis- • covered that the broken plank had previously appeared to be sound, but was shivered underneath. The plaintiff’s evidence showed that about two weeks before the accident, a third person had informed the road supervisor that there was a defective plank in this bridge, but the supervisor testified that the information so given him related to another bridge in the vicinity. Under these circumstances, in an action against the County Commissioners for their failure to keep the bridge in repair, according to their statutory duty, it is error to instruct the jury that their verdict must be for the defendants, unless they find that the defendants knew, or by ordinary care could have known, the bad condition of the bridge in time to repair the same before the accident, or could not, by the exercise of ordinary care, have discovered the defect in the bridge. Such instruction ignored the evidence as to the notice to the road supervisor. Notice to him was notice to the defendants; and the jury might have inferred from the instruction that because the commissioners did not have personal knowledge of the defect in the bridge, they were not liable.</p>

<p> One Owner of a Party Wall not Authorized to Make Openings Therin —Injtmction Requiring Windows Opened in Party Wall lo be Closed Reformation of Deed for Mistake. </p> <p>The owner of half of a party wall between his lot and the adjoining lot is not authorized to open windows in such wall, whether the adjoining owner intends to use that part of the wall or not.</p> <p>An injunction will be granted to restrain one of the owners of a party wall from opening windows in the same; and if such openings have been made without authority, a mandatory injunction will issue requiring the windows to be closed, and the wall to be made solid as a party wall should be.</p> <p>The owner of a warehouse and lot of ground conveyed to the owner of the adjoining lot one-half of the ground on which one of the side walls was erected and one-half of the ground extending from the end of the wall to the end of the lot and of the width of the wall, by a deed which provided that the walls should be used as a partition wall between the grantor’s building and the warehouse about to be erected by the grantee; also that if the grantee should desire to extend the wall in length or add to the same in height, such extension or addition should be made at the expense of the grantee, and that the grantor should have the right to use the same as a party wall. The grantee extended the wall to a greater depth and opened windows in the extended part overlooking the rear of the grantor’s lot. Held, that the extension of the wall made by the grantee was a party wall, and that a mandatory injunction should issue requiring the grantee to close such openings.</p> <p>The contract between the parties by which a strip of ground was to be conveyed on part of which a wall between the lots of the grantor and grantee was erected, with the right to use the same as a party wall provided as follows: ‘‘If the purchasers desire the wall to run to a greater depth than the north wall now standing, said wall is to be erected entirely at their expense, and in the same line and of the same thickness as the wall now standing, with the privilege to the seller to use this new part of said wall at any time as a party wall without any additional cost or charge therefor.” In the deed executed in pursuance of this contract, the sellers were designated as the parties of the first part, and the purchasers as the parties of the second part and the deed provided as follows: “If the parties of the second part desire to erect their wall to a greater depth * * the said wall is to be erected entirely at the expense of the parties of the second part, and in the same line and of the same thickness as the wall now standing, with the privilege to the parties of the second part to use this new wall without any additional costs or charges therefor.” The evidence clearly showed that the words “parties of the second part” in the latter half of this clause were used by mistake of the draughtsman instead of the words “parties of the first part.” It was accordingly decreed that the deed should be reformed so as to correct this mistake, and express the real agreement.</p>

<p>Appeal from the Superior .Court of Baltimore City (Elliott, J.)</p> <p>The main point upon which this case turns is whether or not Schuck was legally compelled to perform his original con-' tract to dig Linz’s cellar.</p> <p>Whether Schuck could abandon the work he agreed to perform ; then by stress of circumstances and conditions compel Linz to pay him more money before consenting to perform that which he had bound himself by solemn contract to do for a specified sum.</p> <p>Whether Linz’s promise (according to plaintiff’s testimony) to Schuck to pay him an additional sum other than that named in the contract can be held to be a good and valid promise based upon a good and legal consideration so as to form a new contract, be tween the parties whereby Schuck bound himself to do that which he had already undertaken by solemn contract to do.</p> <p>The test of the whole matter is to find out after the work had been performed, just what work Schuck did actually perform.</p> <p>The most patent and pertinent fact is that Schuck dug a cellar for Linz and the kind of cellar, the way it was dug, the way the walls are claimed to have been underpinned, and all the circumstances and conditions surrounding the finished cellar are similar in every respect to the stipulations of the original contract.</p> <p>When the cellar had been completed Schuck had then only performed the same work which he had agreed to do in his original contract.</p> <p>The sole difference is that under the original contract Schuck was to be paid a specific sum, and under the allegation that Linz “promised something” in addition thereto, he was to get a greater sum. Can this be permitted under the law ?</p> <p>Can a man contract to do a thing, then abandon his contract and by stress of the inexorable circumstances which he, himself \ has brought about, compel his contractee to pay a greater sum whenever he happens to have made a contract with which he is not satisfied ?</p> <p>The general rule is that if a contract fixes the right of a person working on a building, any promise to pay him extra for doing what the contract binds him to do is without consideration and void. 6 Am. & Eng. Enc., 752; Ayers v. Chicago R. R. Co., 52 Iowa, 478; Fertman v. Parker, 10 Ind. 474; Lingenf elder v. Wainwright Brew. Co., 103 Mo. 579; Erb v. Brown, 69 Pa. St. 216; Cobb v. Cowdery, &c., 40 Vt. 25; King v. D. M. & N. R. R. Co., 61 Minn. 482; Vanderbilt v. Schreyer, 91 N. Y. 392; Robinson v. Jewett, 116 N. Y. 40; Keith v. Miles, 39 Miss. 442; Chitty on Contracts (14 ed.), pp. 23 and 24; Eastman v. Jackson, 75 Mont. 357; Rooney v. Thompson, 84 N. Y. St. 263; Reeves Pulley Co. v. Jezvell Belting Co., 102 111. Ap. 375; Allen v. Plasmeyere, 90 N. W. 1125 (Neb.); Wendling v. Snyder, 30 Ind. Ap. 330; Alaska Packers Assn. v. Domenico, 117 Fed. 99; Barr anger v. Ryder, 93 N. W. 56 (Iowa); Wear Bros. v. Schmelzer, 92 Mo. Ap. 314. Note to Abbott v. Doane, 34 L. R. A. 33.</p> <p>In the case 92 Mo. Ap. 314, the facts are almost identical with the case at bar, and the conclusion there reached is most applicable to this case.</p> <p>In fact, if a man makes an absolute contract without protecting himself, and it is to be presumed that when Schuck made the investigation which disclosed water under the house as a builder ot twenty years experience he knew what he was doing when he signed an absolute contract, the loss occurring such as the circumstances of this case disclose is thrown upon the promisor. Penna. R. R. Co. v. Ricchert, 58 Md. 261; So. Bid. Asso. v. Price, 88 Md. 156 (163); Benglesdorfv. Hanway, 90 Md. 220 (219); Dermott v. Jones, 2 Wal. 1 (7).</p> <p>The contract was absolute, the loss was Schuck’s loss. Linz is not In any manner responsible for the same, and if Schuck forced Linz to promise an additonal compensation, or if Linz, in order to get Schuck to do what he had originally agreed to do, voluntarily promised an additional compensation such promise is a nudum pactum.</p> <p>Under this view of the well established law all evidence concerning the making of an additional promise should have been excluded and the defendant’s motion to that effect should have been granted as well as the defendant’s prayers instructing the jury of a failure of evidence to establish any greater liability than that specified in the original contract.</p> <p>At the trial below plaintiff introduced a bill of particulars to prove his claim which had been made up from lumber bills and delivery tickets, but the men who made the bills, the men who made the tickets, the man who made the bill of particulars were not produced to prove any of these things or the correctness of the items, yet the bills and the bill of particulars were permitted to go into evidence to prove the plaintiff’s case. Clearly this violates the basic rule of evidence, the best evidence was not given of these things. Schuck should not have been permitted to prove either the bills or the bill of particulars. Thomas v. Price, 30 Md. 483.</p> <p>The principal controversy in this appeal, ranges itself around the substitution of a new contract entered into after unforeseen difficulties had arisen in the performance of an old one and while the old contract still remained executory at least in part.</p> <p>The appellee urges (1) that the parties were at liberty to rescind the old contract while still executory; (2) that a new one might be substituted for it by parol agreement; (3) that no new superadded consideration for the new agreement even for a larger sum was needed to bind the contract.</p> <p>The unforseen difficulty here was :</p> <p>(4) “We got into a swamp like'the bottom of an old creek,” a difficulty unexpectedly met in excavating the cellar. It was marshy tidewater soil.</p> <p>(2) The act of Building Inspector Preston in forbidding the continuance of the work.</p> <p>(3) The work was abandoned all summer, the best time for building operations. Schuck refused to go on with the work.</p> <p>(4) But Linz wanted a cellar; the house was no good to him without this cellar.</p> <p>(5) That was what he wanted and when the contract was abandoned and the performance of it waived, he was determined to get it whatever the cost.</p> <p>(6) And then he entered into the new parol agreement to pay what the work of excavation would cost.</p> <p>This is the theory of the plaintiff’s fifth prayer granted by the Court, and on it the jury was justified amply in finding its verdict. . Kingv. Duluth R. R. Co., 61 Minn. 482; Brantly, Conts., 69.</p> <p>“Parties agreed to build a house for a definite price. The house began to settle. There was a conflict of evidence as to whether it was the builder’s fault. The city authorities next removed part of the earth from about the houses, and the owner made a new promise for an additional payment. Held that the new and supplemental agreement was for a valid consideration and was binding.” Cooke v. Murphy, 70 111. 96 ; see cases in 34 L. R. A. 38 and 40.</p> <p>After a sealed agreement was made for an inadequate price, and part of the work done, plaintiff refused to proceed, but upon a parol promise by the defendant that he should be paid for his labor and materials, and should not suffer, he went on and. finished the building. It was held that the first contract was waived and that he was entitled to recover upon a parol promise. Munroe v. Perkins, 9 Pick. 298; 6 Am. & Eng. Ency., 754.</p> <p>It is competent for the parties to a written agreement to change or modify the same, and thus by new conditions not in writing to waive, add to, or qualify its terms. And where reciprocal rights are granted or concessions made by both parties under the parol modifications and have been acquiesced in by each, the new arrangement will be sustained. Youngberg v. Lamberton, 91 Minn. 100.</p> <p>While mere inadequacy of contract price is not sufficient to make a new arrangement possible, some excusable mistake of fact is. King v. Duluth R. R. Co., 61 Minn. 488; Michaud v. MacGregor, 61 Minn. 479; 9 Cyc., 352.</p> <p>In the Michaud-MacGregor case, supra, the unforeseen obstacles were rocks, of the existence of which both parties were ignorant. In Meech v. City of Buffalo, 29 N. Y. 198, the unforseen difficulty was a quicksand. In Hart v. Lauman, 29 Barb. 410, the contractor met unexpectedly hard material in excavating; he stopped work several weeks, but resumed under a new agreement to be compensated in addition. The rescission was held valid, and the new agreement sustained. See also Goebel v. Linn, 47 Mich. 489.</p> <p>Where the contract is executory on both sides, parties are at liberty to rescind it by substituting a new contract therefor. Brantly, Contract, 70 and 194. And here by their dealing with each other they have made a new contract. Orem v. Keelty, 85 Md. 337;' see p. 346.</p> <p>In Greenleaf on Evidence it is said to be well settled that in case of a simple contract in writing, oral evidence is admissible to show that by a subsequent agreement, the time of performance was enlarged or the place of performance changed, or that the agreement itself was waived or abandoned; also that it is competent to prove an additional supplementary agreement by parol, by which something is supplied not in the contract. Cited and approved in Coatee v. Sangston, 5 Md. 131; Allen v. Sowerby, 37 Md. 4x1.</p>

<p>Appeal from the Circuit Court for Montgomery County (Henderson and Motter, JJ.)</p>

<p>Appeal from the Circuit Court of Baltimore City (Elliott, J.)</p>

<p>Appeal from the Circuit Court for Washington County (Henderson, J.)</p>

<p>Cross appeals from the Court of Common Pleas (Stock-bridge, J.)</p>

<p>Appeal from Circuit Court No. 2, of Baltimore City (Wickes, J.)</p>

<p>Appeal from Circuit Court No. 2, of Baltimore City (Wickes, J.) ■</p>

<p>Appeal from the Court of Common Pleas (Harlan, C. J.</p> <p>In the first exception the question asked was: Doctor, assuming that there was a post-mortem examination performed by a competent surgeon, and that it was found by the postmortem examination that Colonel Thomas was affected with arteria sclerosis; would you be prepared, from any knowledge that you got from the clinical side of the case, to say he did not have arterio sclerosis ?</p> <p>In the second exception the question was : So if the evidence showed Col. Thomas for many years had been a hard drinker, and for many years suffered from rheumatism, those would be natural predisposing causes towards arteño sclerosis?</p> <p>In the fourth exception the question was: If he had this arterio sclerosis in a more serious degree than most men of his age would’nt that be a plausible explanation of why he died when the majority of men under the same circumstances would not have died ?</p> <p>It will be found that the text writers thus far have practically ignored the meaning of the words “resulting directly and independently of all other causes from bodily injuries sustained through external, violent and accidental means” in so far as those words might be held to limit the liability of an accident insurance company, and make that liability less than that of a tort feasor. That is to say, the text writers have most of them tacitly assumed that the words “independently of all other causes” attempt to do so much that they do nothing, and standing by themselves are mere surplusage ; so that if the policy contains no other limitation of the assurer’s liability than that expressed in those words, then just as a tort feasor is responsible for the direct, natural and probable consequences of his act, regardless of the previous physical condition of the plaintiff, just so is an insurer under such a policy liable for the direct, natural and probable consequences of an accidental injury entirely regardless of the previous physical condition of the plaintiff, and the plaintiff needs only to show that the injuries causing the disability or death were caused by external, violent and accidental means. But when the text writers do consider the phrase “independently of all other causes,” they write something like the following: “The provision that the injury insured against must be effected by the specified means ‘independently of all other causes’ is so unreasonable, indefinite and repugnant to the main purpose of the contract that the Courts construe it very strictly against the insurers, and sometimes really seem to disregard it altogether.” Richards on Insurance, p. 215,</p> <p>When the policy contains a negative stipulation, of which a typical form is “benefits under this certificate shall not extend to any death or disability which may be caused wholly or in part by bodily infirmities or disease,” with special reference to that particular form of policy the following principles will be found to be enunciated :</p> <p>1. If the insured was perfectly healthy when accidentally injured, and the accident set up a chain of causes in which a disease in one form or another entered, then the exception in the policy has no force, and the insurer is liable, even though a previous injury or a previous attack of disease had rendered the insured abnormally liable to a recurrence of the disease or abnormally sensitive to the effects of an accidental injury.</p> <p>2. If there was a pre-existing disease at the time of the accidental injury, even though unknown to the injured, and if that disease aggravated the effects of the accident, or the accident aggravated or hastened the progress of the disease, then the exception comes into play, and the insurer is not liable. McGluckey v.Fidelity and Casualty Co., 80 Me. 251; Accident Insurance Co. v. Crandall, 120 U. S. 527; Young v. Accident Insurance Co., Mont. L. Rep., 6 Super. Ct. 3; Isitt v.Ry. Pass. Assn. Co., L. R. 22, Q. B. 504; Travelers' Insurance Co. v. Melick, 65 Fed. Rep. 178; Peck v. Equitable Accident Assn., 5 N. Y. Supp. 215; Winspear v. The Accident Ins. Co. Lim.,Y. R. 6 Q. B. Div. 42;"Fidelity and Casualty Co. v. Johnson, 30 L. R. A. 206.</p> <p>In the policy sued on in the present case, there is no such negative stipulation or exception. The policy provides that the company shall pay for injuries produced by accidental means and independently of all other causes. That is all that the policy says in that regard.</p> <p>In the cases relied on by the defendant below (a) The policy contained a negative stipulation or exception of disease; and (¿) the Court in its opinion referred specifically to such negative stipulation or exception of disease as ground of its decision. And in the policy sued on in this case there is' no such negative stipulation or exception of disease whatsoever!</p> <p>In Fetter v. Fidelity & Casualty Co., 174 Mo. 256, it appeared that the insured, a man of 69 years of age, in trying to push up a window which had stuck, fell on his right side against the edge of a table. This fall injured or ruptured his right kidney; and after about thirty days of hemorrhage he died. The autopsy showed that the lower end of his right kidney was in a cancerous condition, and that the rupture was between the normal and cancerous parts, or into the healthy tissue. All the testimony was that the accident caused the rupture, the rupture caused the hemorrhage, and the hemorrhage caused the death. The majority of the expert witnesses were of the opinion that the cancerous condition of the kidney existed at the time of the accident, and that that condition was the predisposing cause of the rupture, that is, that that condition rendered rupture more liable to occur under the force of the blow than if the kidney had been sound. But some of the expert testimony was .to the effect that the cancerous condition itself might have been produced by the blow.</p> <p>Under these facts the trial Court granted an instruction offered by the plaintiff that they might find for the plaintiff, “notwithstanding, the jury further believes, from the evidence that the said kidney, at the time of the rupture, was diseased, provided that the. jury further find that said Fetter would not have died at the time under the circumstances and in the manner he did die had it not been for the accidental rupture of his kidney.” This and other instructions were supplemented by the modified instruction for the defendant that the- plaintiff could not recover unless “the accident was the sole and only direct cause of death.”</p> <p>The instructions were approved by the Court. Commenting on the defendant’s contention that the words “independent of all other causes” should be given a qualifying meaning so that upon the evidence outlined the case should have been taken from the jury, the Court said, “If we should give to those qualifying words of the policy the meaning that is now claimed by the defendant they were intended to have, there would be scarcely any limit to their nullifying influence * * *. If, therefore, there could be discovered in a man’s body, after his death, any condition before undiscovered and unsuspected, that under scientific tests would render him more amenable to accidents or less capable of resisting their influence, the policy would not cover the case. The fact that a man is sixty-nine years old, yet with an activity of body ordinarily found only in one much younger, might have something to do both with the fact of an accident and its result, and thus his age and unusual activity, could be said to be a predisposing cause — remote, perhaps, as the learned witness designated the cancer in this case — still, in such case, in that sense, the accident could not be said to have been the cause of the death ‘independent of all other causes.’ The causes referred to in the policy are the proximate or direct, not the remote causes.”</p> <p>This opinion was rendered upon consideration of a policy which like the one in the case at bar contained no negative stipulation or exception of disease. See also Patterson v. Ocean Accident Co., Court of Appeals, D. C. 33 Wash. L. R. 274.</p> <p>In Modern Woodman, etc., Assn. v. Shryock, 54 Neb. 250, the Court was of the opinion that pre-existiqg disease is an immaterial circumstance, and that the sole question is whether the accident was the proximate and direct cause of death. That this is what the Court means to hold is rendered certain byitlie fact that it approved a verdict for the plaintiff, although the jury, in answer to special interrogatories submitted to it, found that prior to and at the time of his death, Wm. B. Shryock had fatty degeneration of the heart, and that the cause of his death was violent bodily injury, he at the time having fatty degeneration of the heart. See also Preeman v. Mercantile, etc., Ass7i., 156 Mass. 351.</p> <p>!íi Dr is col v. U. S. Health, etc., Co., 93 S. W. (Mo.) 880, the Court said: “In view of what may be developed upon trial, we deem it important at this time to state our construetion of the words in the policy “if death should result solely from such injuries within three months.’ The important question that may arise under certain possible phases of proof is this: ‘What is meant by the term if death should result solely from such injuries?’ We think the only reasonable interpretation to be placed upon this clause is to say that the injury must stand out as the predominant factor in the production of the result, and not that it must have been so virulent in character as necessarily and inevitably to have produced that result, regardless of all other conditions and circumstances. People differ so widely in health, vitality and ability to resist disease and injury that what may mean death to one man would be comparatively harmless to another, and therefore the fact that a given injury may not be generally lethal does not prevent It from becoming so under certain conditions, and if under the peculiar temperament or condition of health of an individual upon whom it is inflicted such injury appears as the active efficient cause that sets in motion agencies that result in death, without intervention of any other independent force then it should be regarded as the sole and proximate cause of death. The fact that the physical infirmity of the victim may be a necessary condition to the'result does not deprive the injury of its distinction as the sole producing cause. In such case, disease and low vitality do not rise to the dignity of concurring causes, but in having deprived nature of her normal power of resistance to attack, appear rather as the passive allies of the agencies set in motion by the injury.” See also Continental Casualty Co. v. Lloyd, 165 Ind. 56, the facts of which case are strikingly similar to the facts of the case at bar.</p> <p>In Fidelity & Casualty Company v. Lowenstein, 46 L. R. A. 450, also reported in 97 Fed. Rep. 17, the policy provided that the insurer should not be liable “for injuries, fatal or otherwise, resulting from poison or anything accidentally or otherwise taken, administered, absorbed or inháled.”</p> <p>The facts of the case were that the insured retired to his room in a hotel, being then in a healthy physical and mental condition; that while asleep he died from asphyxia or suffocation, the result of unconsciously, involuntarily and accidentally inhaling gas into his lungs while asleep. The Court cites a number of cases, among them Fidelity and Casualty Co. v. Waterman, 161 111. 632, all to the effect that such language in a policy does not relieve the insurer from liability if the act of the deceased in inhaling gas was neither conscious nor voluntary, but, on the contrary, was found to have been unconscious, involuntary and accidental.</p> <p>Even should the Court be of the opinion that the distinc-' tion which we have sought to maintain between those cases which arose on policies which contained a negative stipulation or exception of disease on the one hand, and the case at bar, and those which arose out of similar policies to that here sued on, on the other hand, we submit that the evidence in this case does not show so conclusively that prior to the accident on the 17th day of December. 1904, Colonel Thomas was suffering from disease, in a legal sense of that word, as to justify the Court in taking the case from the jury, even upon the theory of the most extreme of the cases which have heretofore been decided.</p> <p>The testimony of Dr. Chambers means practically this:' That arteriosclerosis is the scientific name for that changed condition of the arteries which is a necessary concomitant of age; that Colonel Thomas was sixty-four year of age; and that the structure of his arteries had changed with his age just to the degree which an experienced physician would expect in ' the average or normal case of a man that old. That is not/ disease. It is health. As well say that because there is a disease known to science which causes the bones to become brittle, or because there is a disease known to science which causes the hair to fall out, or because there is or may be a disease known to science which causes the skin to become loose and wrinkled, that every man of sixty-four who has a bald head and a wrinkled face, and whose bones are not as strong as they were when he was a boy, is a diseased man. The mere statement of such a proposition shows how ridiculous it is. It is a matter of common knowledge that the outward structures of the body change with age; and it would never occur to any one to suggest that because those usual outward and visible changes have taken place an old man is suffering from “diseases.” The ordinary man does not see the arteries, but to the trained eye of science they are clearly visible; and when the physician looks at a man sixty-four years old he knows at a glance that that man’s arteries are old arteries, and that they are more or less worn out. This worn-out condition he calls arteriosclerosis. Those facts are simply that the man’s arteries, like every structure in him, (to quote Dr. Chambers), have changed with his years. If that change, ás in the case of Col. Thomas, has proceeded only to that extent which it is usual to find in a man of that age, then it can not possibly be called a disease. To say otherwise is to say that there is no such thing as a healthy man sixty-four years of age, because every man of that age has the changed arteries and the changed structures that go with that age.</p> <p>We say then, that the evidence shows that Col. Thomas did not have any disease prior to his injury. Buteven if the Court should be of the opinion that the only rational' conclusion to be drawn from Dr. Chambers’ testimony is that this arteriosclerosis as Col. Thomas had it, was a disease, (and we can con - ceive of no more irrational conclusion), nevertheless, under the authority of the cases already cited we apprehend that the case should have been allowed to go to the jury, and this whether the legal distinction sought to be maintained in the preceding point of this brief be regarded or not.</p> <p>. Thomas, on the 17th of December, 1904, was suffering from a disease, arteriosclerosis. This disease consisted of a wearing out of the arteries through certain changes which ultimately result in death. These changes, which were in progress on the 17th of December, continued until they resulted in a disease known as encephalo meningitis, which is sometimes one of the last stages of arteriosclerosis. This disease, encephalo meningitis, directly caused death on the 31st of January, 1905. The accident of December 17th did not and could not have caused either arteriosclerosis or encephalo meningitis, and it could not have been dangerous unless the disease, arteriosclerosis, had existed at the time of the accident. The only injury caused by the accident was a fracture of the fibula, and this fracture had completely healed before Thomas’ death. The only possible effect of the accident in connection with the death of Thomas was to accelerate and precipitate the changes which were already in progress through the existing disease, arteriosclerosis. It thus appears that arteriosclerosis existed before the accident, and continued to progress after the accident until it directly caused death.</p> <p>If there were no authorities at all on analogous cases the unambiguous language of the policy must prevent a recovery. If it be conceded that the accident did hasten Thomas’ death, and that his death wo\ild not have occurred at the time it did had it not been for the accident (which Dr. Chambers declines to say positively), yet it appears that arteriosclerosis was at least an efficient, directly contributing cause of his death. On this state of facts, how can it be said that Colonel Thomas’ death was caused by accident independently of all other causes? We submit that not one case has been decided in support of such a proposition. On the contrary, a long line of authorities, some of which are in conflict on other points and details, sustain the judgment of the lower Court in this case.</p> <p>In Nat. Masonic Acc. Assn. v. Shryock, 73 Fed. 774, the Court said: “The burden of proof was upon the defendant in error to establish the facts that William B. Shryock sustained an accident and that that accident was the sole case of his death, independently of all other causes. If Shryock suffered such an accident, and his death was caused by that alone, the association agreed by this certificate to pay the promised indemnity. But if he was affected with a disease or bodily infirmity which caused his death, the association was not liable under this certificate, whether he also suffered an accident or not. If he sustained an accident, but at the time it occurred he was suffering from a pre-existing disease or bodily infirmity, and if the accident would not have caused his death if he had not been affected with the.disease or infirmity, but he died because the accident aggravated the effects of the disease, or the disease aggravated the effect of the accident, the express contract was that the association should not be liable for the amount of this insurance. The death in such a case would not be the result of the accident alone, but it would be caused partly by the disease and partly by the accident, and the contract exempted the association from liability therefor.”</p> <p>The principles thus laid down are also supported by the following authorities: McCarthy v. Travellers Ins. Co., 8 Bissell, 362; Iravellers Ins. Co. v. Selden, 78 Fed. 285; Commercial Travelers Mutual Accident Assn. v. Fulton, jg Fed. 423; Life Ins. Co. v. Dorney, 66 Ohio St. 151, 155, 159; Binder v. National Masonic Accident Assn. (Iowa), 102 N. W. 190; Hubbard v. Mutual Acc. Assn. 98 Fed. 930; *Barry v. Acc. Assn., 23 Fed. 712; affirmed in 131 U. S. 100.</p> <p>In the cases which we have cited thus far there were express provisions in the policies that the insurance should not cover death caused “directly or indirectly, wholly or in part, by disease.” For this reason the appellant seeks to distinguish these cases from the case at bar. Without any apparent attempt to point out precisely how any such distinction could affect the present ease, it was very vigorously contended for the plaintiff that the Courts had made a distinction, and that, therefore, these cases are not authorities in the present case.</p> <p>Obviously, the only possible distinction between a policy insuring against death from accident “independent of all other causes,” and a policy such as those in the cases cited, is in the use of the words “directly or indirectly.” It will hardly be seriously urged that “all other causes” does not include “disease.” On the contrary, it is a more comprehensive expression than a clause expressly excepting death from disease. Hubbard v. Iravellers Ins. Co., 98 Fed. 932.</p> <p>There is some conflict of authority as to the effect of a clause excepting death caused “directly or indirectly by disease.” Some Courts hold that without such provision, the expression “independent of all other causes,” means only “all other proximate causes,” and consequently that the insurer is liable, even though disease was a remote or predisposing cause which indirectly contributed to cause death. Such conflict of authority is, however, immaterial in the present case, since even the cases just mentioned show that there can be no liability on the present state of facts. The majority of cases, indeed, make no distinction between the expression “independent of all other causes,” and an express exception of death caused by “disease, directly or indirectly.” Thus, the opinion in National Masonic Acc. Assn. v. Shryock, already quoted, cites in support of the conclusions Freeman v. Assn., 156 Mass. 351, a case which is relied on by the appellant in the present case.</p> <p>A clear statement of the meaning of the expression “independent of all other causes” will be found in the case of Maryland Casualty Co. v. Glass, 67 S. W. 1062. See also Delany v-Modern Accident Club, 121 Iowa, 528; 63 L. R. A. 603; Binder v. Nat. Masonic Assn., 102 N. W. Rep. 194.</p> <p>Theverylargenumberof cases in which,under a great variety of circumstances, recovery has been permitted on accident insurance policies, do not in any way impair the authority of the cases we have cited, or dispute the principles established by them — at least so far as they have any bearing on the case at bar. Such cases include two large and well-defined classes which are very obviously distinguishable from the present case. These are:</p> <p>(1) Cases in which death results from disease, but the disease itself was caused by the accident. In such case, the disease is a mere link in the chain of causation between the accident and the death, and, so far as the accident is concerned, it must be considered a result and not itself a cause. Death in such case results directly and solely from the accident, independent of all other causes.</p> <p>A great number of cases might be cited in support of this proposition. The case of Freeman v. Mercantile Accident Assn., is an example. There the defendant contended “that it is not liable in case of a death from disease, even if the disease is caused by an accident.” The Court, however, ruled against that' contention and held that if the deceased sustained an accidental fall at a time when he was not suffering from peritonitis, and the accidental fall caused peritonitis from which he died, then the insurer was liable. This case was strongly relied on by the plaintiff in the lower Court. The case of Delaney v. Modern Accident Club, already cited, is another example of the same principle.</p> <p>Cases of this class give no support to the appellant’s case, because here it is indisputable that the disease from which Colonel Thomas died could not have been caused by the fall.</p> <p>(2) Cases where there was an existing disease which did not itself cause, or directly contribute to cause death, but which was a predisposing or remote cause of death by rendering the deceased either more liable to accident, or in case of accident, more liable to sustain fatal injuries directly as a result of the accident.</p> <p>It is with respect to this class of cases that there is some ¿onflict of authority. Some of the cases which we have cited seem to make no distinction between this class of cases and cases where disease contributes directly to cause death, and in which, consequently, there can be no recovery. Even those cases, however, which do make this distinction, and permit a recovery in this class of cases, are not applicable in the present case, or, rather, they themselves show that in the present case there can be no recovery.</p> <p>Two of the cases very strongly relied on by the appellant are excellent illustrations of this class. Fetter v. Fidelity and Casualty Co., 174 Mo. 256; 61 E. R. A. 459; Patterson v. Ocean Acc. Corp., 33 Wash. L. R. 274. In both of these cases the existing disease or predisposing cause was not in any sense an active or efficient cause directly contributing to cause death. It was simply a condition or status under which the accident might cause a result which, under other circumstances or surroundings, it would not have caused.</p> <p>Life insurance policies, as is well known, are issued after medical examination, and for an annual premium, based upon the age and condition of the insured at the time the policy is issued, one policy covering the whole life of the insured. Accident insurance is issued without medical examination, tor one year only, renewed, as in this case, from year to year without apparently any change in premium due to age. Realizing that death may result either (i) from accident, or (2) from disease, or (3) from accident or disease combined, it is expressly provided that the insurer shall not cover either of the two cases in which disease is a factor, but it shall extend only to death from accident, independent of all other cases. Under the rule in the Fetter case, the Patterson case and similar cases, this does not prevent a recovery for death caused solely by accident merely because the insured may have been suffering from disease at the time of the accident, or because his physical condition, age or existing disease may have contributed in some remote or fanciful way in bringing about his death. Colonel Thomas, by reason of sciatica and rheum? - tism, to which he was subject, was undoubtedly more liable to fall and receive the accident which he did than he would otherwise have been. This, however (aside from the question of warranty), would not have relieved the defendant of liability to Thomas, or his estate, for the disability caused directly and solely by his fall, viz: the broken ankle, which had healed before his death. The policy does, however, distinctly provide that the defendant shall not be liable for the results which were not caused by Thomas’ accident, but by pre-existing disease, which, at most, was only hastened in its course by the shock incident to the fall.</p>

) The defendant’s first and second prayers were as follows: ist.

) An analysis of the testimony will show that the architect not only acted honestly and in perfect good faith in withholding the certificate… Held: that the plaintiff might maintain an action against the defendant on a quantum meruit for his labors, and on a quantum valebat for the materials.” This case has been cited with approval or followed in the following, among other cases: Sndthv. Lowell, 8 Pick. (Mass.) 178; Taftv. Montague, 14 Mass. 282; Olmstead v. Beale, 19 Pick.

<p>Appeal from the Circuit Court for Baltimore County (Burke, J.)</p>

<p>Appeal from the Circuit Court for Anne Arundel County (Revell, J.)</p>

<p>Assessment for Taxation of Shares of Stock — Book Value and Market Value — Injunctio?i Against Improper Vahtation.</p> <p>Under Code, Art. 8r, the State Tax Commissioner is directed to fix the taxable value of the shares of stock of corporations by first ascertaining the gross or total value of the shares, and deducting therefrom the value of the real estate owned by the corporation, upon which taxes are separately levied. In assessing the shares of stock of certain banks, the Tax Commissioner added together the amount of the capital stock, surplus fund and undivided profits, including the sinking or contingent funds and from this amount, being the so-called book value, he deducted the assessed value of the real estate owned by the bank and also one-fourth of the total amount of the assessment. Held, that it is the duty of the Tax Commissioner to pursue a method which will result in ascertaining the actual value of the shares; that in the case of shares in a bank currently bought and sold, the market price is the best evidence of their value; that the book value of the shares of stock is not a true measure of their actual value, because it takes no account of elements contributing to the earning capacity of the corporation; that the method adopted by the Commissioner of accepting the book value alone as the criterion of the worth of the shares of banks is improper, and that in making his assessment, he should have a special regard to the market price of those shares which, from the frequency of their sale, may be regarded as having a market price, and as to other shares, he should ascertain and consider all of the elements tending to establish their intrinsic value, and that the deduction, if any, to be made from the gross valuation of shares must be only such as to provide against probable fluctuations in value.</p> <p>Equity has jurisdiction of a bill to restrain the Tax Commissioner from assessing for taxation the shares of stock of corporations according to a fixed method which will not result in ascertaining their real value, since the question in such case does not concern the judgment of the Tax Commissioner, or the amount of the assessment made by him, but relates to the legality of his method of valuation.</p>

<p>Appeals from the Circuit Court for Baltimore County (Buiuce, J.)</p>

<p>Appeal from the Circuit Court No. 2, of Baltimore City (WlCKES, J.)</p>

<p>Appeal from the Superior Court of Baltimore City (Nii.es, J.)</p>

<p> Allowance of Fees to Counsel for Administrators. </p> <p>Administrators who employ counsel to render professional services in the settlement of the decedent’s estate are entitled to an allowance of reasonable counsel fees for their compensation; and a previous order of the Orphans’ Court authorizing the employment of counsel is not necessary to justify such allowance.</p> <p>The proper amount to be allowed as fees to counsel for services rendered to administrators in this case determined upon the facts.</p>

J., and Adkins, J.), where there was a judgment for the plaintiff for $1,500, Plaintiff!s 1st Prayer.-. — If the jury find that at the time of the snow storm, testified to in this case, there were ruts and holes in the public road near Bott’s gate of such a character as if allowed to remain, during the winter season, would naturally become dangerous, if the jury shall so find, and of which the defendants or their agents could, by the exercise of ordinary care, have had…

<p>Appeal from the Court of Common Pleas, (Harlan, C. J.) where there was a judgment for the plaintiff for $500.</p>

<p>Appeal fro'm the Baltimore City Court (Phelps, J.), where there was a verdict for the plaintiff for $500.</p>

<p>Appeal from the Superior Court of Baltimore City (Phexps, J.)</p>

Henderson, J.), where there was a verdict and judgment for the plaintiff for $2,000.

<p>Appeal from the Baltimore City Court (Stockbridgr, J.)</p>

<p>Taxation— When Appeal Raises Question of Lazv as lo the Liability of Property to Assessment — Completion of Improvements at Date Fixed for Assessment — Substantial Completion.</p> <p>The action of the Baltimore City Court in determining that certain property assessed by the Appeal Tax Court is liable to taxation as matter of law, cannot be reviewed by this Court under sec. 170 of the Baltimore City Charter, providing for appeals, unless the question of law involved is raised by an exception to the ruling of the lower Court on a prayer or as to the admissibility of evidence, or by a demurrer, or in some way plainly presenting the question of law.</p> <p>Baltimore City Ordinance No. 170 of 1899 provides that all new improvements finished on or before October ist of each year shall be assessed for taxation for the ensuing year, “the said improvements to be construed as finished when plastering and inside wood-work are completed.’’ Held, that under this ordinance new improvements are to be assessed when the plastering and inside wood-work are substantially completed by October rst, although some part of such work may then remain to be done.</p> <p>Ordinance No. 170 of the year 1899 of Baltimore City directs that new improvements on property finished on or before October xst shall be assessed, the said improvements to be construed as finished when the . plastering and inside wood-work are completed. The owner of newly improved property asked the City Court to rescind an assessment thereon on the ground that the improvements were not finished on October 1st. That Court passed an order determining that the improvements were so far completed on October rst as to be liable to assessment, but directed a reduction in the amount of the assessment made by the Appeal Tax Court. Upon an appeal from this order, held, that the Question of fact whether the building was so far completed on October 1st as to be liable to assessment is one wholly within the jurisdiction of the lower Court, and its action cannot be reviewed by this Court.</p> <p>Held, further, that the question of law involved, that is, whether under the ordinance, the improvements could be assessed if the plastering and inside wood-work were substantially, but not entirely, completed on October 1st, is not presented by the appeal from the order in such a way that it can be reviewed by this Court, and that consequently, the appeal must be dismissed.</p>

) 1. The clause in the City Charter of Baltimore City which it is claimed has been violated by the city in the advertisement for bids or proposals for the grading, paving and curbing of Carroll street, is a part of section 14, and is as follows: “ Unless otherwise provided for in this Article, proposals for the same (public work, &c.), shall be first advertised for in two or more daily newspapers published in Baltimore City, for not less than ten nor more than twenty days.”…

<p>Appeal from the Superior Court of Baltimore City (Stock-bridge, J.) . ■ '</p>

) The distribution made in this case to the tenants for life enured to the benefit of the remaindermen as well as the tenants for life, and was thus a complete distribution, and apparently the learned counsel for the defendant took the same view, because he opened his evidence and did not offer any prayer at the close of the plaintiff’s case; did not offer it until the Court suggested it after he had begun to offer his testimony.

<p>Appeal from the Circuit Court for Harford County (Van Bibber J.)</p>

<p>Appeal from the Circuit Court for Allegany County (Robert R. Henderson, J.)</p>

, sitting as Court and jury.) The amended declaration in the case was as follows: The Acker, Merrall and Condit Company, a corporation created and existing under the laws of the State of New York, by Steele and Semnies, its attorneys, sues George K. Mc-Gaw: (1.) For that, on or about the 28th day of February, nineteen hundred and three, and for some years prior thereto, the said George K. McGaw had been conducting a grocery business in the city of Baltimore, under the firm…

<p>Appeal from the Baltimore City Court (Stockbridge, J.)</p>

<p>Appeal from the Circuit Court of Baltimore City (Elliott, J.)</p>

<p>Appeal from the Superior Court of Baltimore City (Nu.es, J.), where there was a judgment for the plaintiff for $500.</p>

) Plaintiff’s 1st Prayer. — If you find that the goods, the subject of this suit, were consigned by the plaintiff to the defendants with invoices plainly requiring “stock to be covered by insurance for the benefit of the consignor,” that the goods were accepted by the defendants without objections that no such insurance was made and that the goods were destroyed by fire, then the plaintiff is entitled to recover.

) Plaintiff’s 1st Prayer. — The plaintiff prays the Court to rule as a matter of law that if the negotiations for the sale of the property mentioned in this cause were begun through the plaintiff’s intervention,.and that the same culminated in the sale of the property, or if the sale was actually made by or through the information obtained through the plaintiff or his agents or assistants, then the verdict must be for the plaintiff.

) .where there was a verdict and judgment for the plaintiff for Defendant’s ist Prayer. — If the jury shall find that the platform of the car by which the plaintiff alighted was covered with ice, and that the defendant was negligent in not moving it; and if they shall further find that the plaintiff could have avoided slipping down the steps by the use of ordinary care on her part, then their verdict must be for the defendant, (iGranted.) Defendant's 2nd Prayer. — That…

) Plaintiff’s ist Prayer.— The plaintiff prays the Court sitting as a jury to rule as a matter of law that as the pole of the plaintiffs, together with the appliances attached thereto, mentioned in the evidence, was placed in the alley in the rear of the property 212 North Fulton avenue, in order that the plaintiff might serve electric lights to its patrons living on the same side of Fulton avenue andin the same block with the defendant, and as such act of the plaintiff did…

<p>Upon motion for re-argument.</p> <p>Appeal from the Circuit Court No. 2, of Baltimore City (Wjckes, J.)</p>

<p>Building Associations — Weekly Payment of Interest and Dues not Usurious — Kntrance Pee (vnd Fines — Accounting Between Association and Borrowing Member.</p> <p>A mortgage to a building association by a member to secure a loan made on his shares of stock is not rendered illegal or usurious because interest on the loan is payable weekly, or because fines are imposed for neglect to pay dues and interest. Code, Art. 23, secs 125, 130, authorizes building associations to make such charges.</p> <p>When the constitution of a building association provides that a borrowing member shall pay a certain sum per week on each share until the amount so paid in, together with profits credited on the shares, shall amount to their par value, such member is entitled to be credited with profits, although in default as to payment of dues, interest and fines.</p> <p>The entrance fee and the fee on making subscription to shares, required of each member by the constitution of a building association, are not to be credited on part payment of the sum loaned to a member, when the constitution also provides that the shares are to be redeemed by weekly-payment of dues and credited profits.</p> <p>Weekly dues and interest payable by a borrowing member of a building association constitute but one debt and fines cannot be imposed for every week the interest remains unpaid.</p> <p>The constitution of a building association fixed the value of each share at $130, to be paid in weekly installments of 35 cents, until these dues and the profits credited on the share semi-annually should amount to $130. It was also provided that a member offering satisfactory security should be entitled to an advance of $130 on each of his shares and that he should be charged with interest on the amount advanced at the rate of six per cent, which interest he could pay in weekly installments, in addition to the regular weekly' dues, such payments to continue until the weekly dues paid and the credited profits amount to the par value of the shares. A member of the association subscribed for five shares of stock, received a loan thereon of the par value, I650, and executed a mortgage of land conditioned for the payment of interest, weekly dues and fines and penalties, the mortgage being in conformity with the con - stitution. Under this mortgage the borrower was required to pay 15 cents a week on each share, which was interest at the legal rate of six per cent on the amount of the loan, and 33 cents a week on each share until these amounts, together with the profits, amounted to $130, when the share would be redeemed. The borrower being in default as to these payments, the mortgage was foreclosed. Upon exceptions to an ‘auditor’s account distributing the proceeds óf sale, held, that the mortgage is not usurious and is such as is authorized under Code Art. 23, sec. 125.</p> <p>Held, further, that the borrower is entitled to have deducted from the mortgage debt the amount paid in as weekly dues on the shares and also any profits credited thereon and is liable for the balance together with unpaid interest and such reasonable fines for non-payment of dues as were charged under the by-laws.</p> <p>Held, further, that a tender made by the borrower to settle the debt when the amount tendered was calculated upon the theory that mortgagor was simply a borrower and not liable as a member was properly rejected.</p>

<p>Appeal from the Circuit Court of Baltimore City (Elliott J.)</p>

) The appellee’s demurrer to the appellant’s plea of limitations was properly overruled. The form of the plea is substantially that provided by Code Public Law (1904), Article 75, section 24, sub-section 50. A plain statement of such facts as may be necessary to form the defense is all that is required. Wallace v. Schaub, 81 Md. 597- But the judgment on the appellee’s demurrer should have been final and not “with leave to reply.