Volume 145 — Maryland Reports

<p>Fellow Servants — Employee Loaned to Another — Gleaning Machinery — Contributory Negligence.</p> <p>An employee of one person may become the servant of another by reason of the loan of him by the former to the latter for some particular service, in which case he becomes the fellow servant of the servants of him to whom he is loaned.</p> <p>p. 255</p> <p>PLimúff, an employee of a contracting firm, having, after the completion by such firm of the installation of electric n nchinery in a sugar refinery belonging to defendant, been loaned to the latter to aid in training its electricians, held that, he having testified that he continued to be paid by the contracting firm, and it appearing that he received orders both from the superintendent of that firm and from an employee of defendant, it was a question for the jury whether he was a servant of defendant and not of the firm. pp. 256, 257</p> <p>' Where, a conveyor in a sugar refinery having become clogged by an accumulation of sugar in the trough in which the conveyor worked, and the machinery having bisen stopped, an electrician, whose duty it was to look after the movement of the machinery, aided others in removing the sugar from the trough, held that the fact that he used his hands for this’ purpose, while, the others used paddles, did not show, as a matter of law, contributory negligence on his part, there being, no special risk in so doing so long as the machinery remained motionless, and his injury resulting from the starting of the machinery. pp. 257, 258</p> <p>Evidence that an employee of .defendant sugar refinery started the electric machinery while plaintiff was removing sugar from a trough in which a conveyor, revolved, held to be sufficient to go to the jury on the question of defendant’s negligence. p. 258</p> <p>That plaintiff failed “to pull out the switch” before undertaking to clean sugar from the trough did not warrant a directed verdict for defendant. . p. 258</p> <p>The evidence showing that it was the duty of plaintiff,- an electrician, to keep the machinery in defendant’s sugar refinery going, and that this necessitated the removal of an accumulation of sugar from a trough, the fact that it was not usual for electricians to remove such accumulations did not affect the duty which defendant owed him while he was aiding in such removal. p. 259</p>

Pleas of Baltimore City (Ambler, J.). Action by the State of Maryland, for the use of Helen A. Morrow, widow of William J. Morrow, against the- Washington, Baltimore and Annapolis Bailway Company. From a judgment for defendant, plaintiff appeals.

<p>Appeal from the Circuit Court for Harford County (Harían, L).</p> <p>Action by Cecelia A. Grinath against the Baltimore and Bel Air Electric Eailway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from the Circuit Court, for Frederick County, In Equity (Worthington, J.).</p> <p>Bill by Brooke I. Jamison against Anna E. Horner and others. From a decree for plaintiff, C. F. Rotering and others, trustees, appeal.</p>

<p>Bemoval of Cloud — Possession of Plaintiff — Exception to Bequirem ent — Fraud.</p> <p>To support a suit to remove a cloud from title, plaintiffs therein cannot assert that the' possession of defendants, being that of plaintiffs’ tenants, is plaintiffs’ possession, so long as such possession by the landlords through the tenants is not an obstacle to a suit at law. p. 308</p> <p>While, as a general rule, the jurisdiction of a court of equity cannot be invoked to remove a cloud from title unless the plaintiff has the legal title and possession, there are some recognized exceptions to this rule, one of which is where fraud is charged. p. 309</p> <p>That plaintiffs have a remedy by suit in ejectment -is not sufficient to oust the jurisdiction of an equity court. p. 309</p> <p>A bill seeking to remove, as a clond on plaintiffs’ title, a lease executed to defendants by a former owner, under which defendants claimed the right of possession, and averring that the lease was procured from such former owner while incompetent, by false statements by defendants that they would vacate the premises at any time, and with knowledge on their part of the lessor’s incompetency, that at the time of the procurement of the lease the lessor had no interest in the property, and that the procurement of the lease was a fraudulent and wrongful-act, held sufficient to confer jurisdiction on a court of equity on the ground of fraud. pp. 303-309</p> <p>The grantee of one from whom a conveyance or lease was procured by fraud may sue to set it aside. pp. 309, 310</p> <p>In a suit to remove a cloud on title, based on the ground of fraud, defendants cannot deprive the court of jurisdiction by questioning plaintiffs’ title, the question whether plaintiffs are without right to bring the suit for want of interest, which is incidental to the real question at issue, being one to be raised as matter of defense. p. 310</p>

Petition by Elizabeth Beineclte against Charles Marx, as executor of the estate of John Marx, Senior, deceased, for the discovery of certain assets belonging to the said estate, and incidental relief. From various orders granted in connection with such petition, said executor appeals.

<p>Appeal from the Circuit Court for Caroline County (Ankjrnts, C. J., and Wickks, J.).</p> <p>Action by Evelyn S. Kelly against the Huber Baking Company. From a judgment for defendant, plaintiff appeals.</p>

Petition by the State oí Maryland on the relation of the Mayor and City Council of Baltimore and the B'oard of Zoning Appe'als of Baltimore City for a writ of certiorari to the Baltimore City Court.

<p>Appeal from the Circuit Court of Baltimore City (Durey, J.).</p> <p>Bill by Bobert H. Wempe and others agaiust Margaret Beil aud others. From a decree for plaintiffs, defendants appeal.</p>

). Bill by David Ash against John H. Boland, Jr., administrator of the estate of John H. Boland, deceased, and others. From an order overruling demurrers to the bill, defendants appeal.

Bond, J.). Petition by the Mondawmin Building and Loan Association of Baltimore City against Jonas Herman and Claire M. Herman, his wife, for the foreclosure of a mortgage. From an order overruling exceptions to a sale made by a trustee appointed by the court for the purpose, the said Jonas Herman and Claire M. Herman appeal.

y I.). Action by the Mayor and City Council of Havre de Grace against The Havre de Grace and Perryville Bridge Company, and Thomas H. Robinson and Michael H. Fahey, receivers of said company. From a judgment for defendants, plaintiff appeals.

<p>Specific Performance — Family Agreement — Evidence—Statute of Frauds — Part Performance.</p> <p>The absolute owner of property has the legal right to enter into a contract to execute a will in favor of the other contracting party, or to execute a deed securing to the other contracting party a vested remainder in the property so owned; and such contracts may be enforced in courts of equity by decree for specific performance. p. 510</p> <p>The law does not look' with favor upon agreements of this character, and the contract relied on must be set out in the bill of complaint, must be certain and unambiguous in all its terms, and the proof thereof must be definite and certain, strong and convincing, and such as not to leave any material part of the contract to conjecture and speculation. p. 510</p> <p>tipon an application for the specific performance of an unexecuted agreement, the complainants must not only prove that the agreement was made, but must also so clearly and fully 'show its terms that the court can have no difficulty in knowing what they are; the complaint must allege an agreement, the terms of which are clear, definite, and conclusive; and the evidence must be sufficient to prove the allegations. p. 510</p> <p>The allegation of a family agreement between a mother and her two children, as to who should have the mother’s property after her death, without any allegation or proof as to the time of the agreement, the circumstances under which it was made, or the consideration therefor, will not justify a decree of specific performance in favor of one child, as against the denials by the mother and other child of the making of said agreement. p. 511</p> <p>A mere family understanding as to the disposition of a parent’s property after her death is, in the absence of clear and convincing testimony, not such an agreement as a court of equity will enforce. p. 511</p> <p>That a parent, by a conveyance and reconveyance, vested her property in herself for life with remainder to her daughter, was not evidence of an agreement by her that her daughter should have the property after her death, in view of the mother’s express retention of a power to dispose of the property in fee simple and apply the proceeds to her own use and benefit, and her testimony that there was no such agreement. p. 511</p> <p>When an agreement to convey or devise land is entirely oral, the Statute of Frauds is a complete defence to a suit for specific performance, unless the bar of the statute is removed by such partial performance by plaintiff as would make it inequitable to deny that relief. p. 512</p> <p>The acts of part performance, to take the case out of the statute, must be clear and definite and refer exclusively to the alleged agreement. p. 512</p>

<p>Appeal from the Baltimore City Court (Frank, J.).</p> <p>Action by the Crown Cork and Seal Company of Baltimore City against the United States Fidelity and Guaranty Company. From a judgment for plaintiff, defendant appeals.</p>

). Bill by the Brightwood Sanitarium Company against W. Mitchell Digges, Francis E. Mattingly and others, to which proceeding William E. Mattingly was, on his petition, made a party. From a decree allowing said Francis E. Mattingly certain sums claimed by him for expenses and advancements, said William E. Mattingly appeals.

). Attachment on judgment in favor of the J. Cueva Company against the Consolidated Pocahontas Coal ‘Company, laid in the hands of R. Lancaster Williams and Company, Incorporated, as garnishee. From a judgment for the garnishee, the plaintiff appeals. •

). Bill by the Vestry of Grace and St, Peter’s Church, a body corporate, and the Convention of the Protestant Episcopal Church of the Diocese of Maryland, a body corporate, against Wladyslaw Rvdzewski and Wladyslawa Rydzewski, his wife, for specific performance. From a decree for plaintiffs, defendants appeal.

<p>Appeal from the 'Superior Court of Baltimore City (HErnsnER, J.).</p> <p>Action by Clara D. Connolly against the Travelers Insurance Company. From a judgment for plaintiff, defendant .appeals.</p> <p>Plaintiff’s -prayer was as follows:</p> <p>'The court instructs the jury that where death results from a pistol shot wound, self destruction is not presumed, but the law presumes the wound was the result of accident; and the burden of proof in this case is upon the defendant to show by a fair preponderance of testimony that the shot was intentionally self-inflicted, and that it was not the result of accident; and unless the jury find from the evidence in this case that Vincent A. Connolly intentionally shot himself, the verdict of the jury must be for the plaintiff in the full amount of the two policies sued on, to wit: ten thousand dollars ($10,000.00) ; and the jury in their discretion may allow interest on said sum from December 2, 1921. Granted.</p> <p>Defendant’s prayers were as follows:</p> <p>First. — The jury are instructed that the policies of insurance sued upon in this case contain the following provision: '‘Suicide — In case of suicide committed while sane or insane within one year from the date on which this insurance shall become effective, the limit of recovery- hereunder shall be the premiums paid.” It appears from the undisputed evidence that premiums amounting’ to $143.00 were paid by the assured, Vincent A. Connolly, upon these policies prior to his death. It also appears from the undisputed evidence that the assured, Vincent A. Connolly, came to- his death before the expiration of one year from the time the policies went into effect, so that if the assured committed suicide, the plaintiff is only entitled to recover in this case the said amount of $ . And if the .jury find from the evidence that on the 8th day of October, 1921, the said Vincent A. Connolly was and for some time had been in the- employ of the Equitable Trust Company of Baltimore, as assistant secretary and as assistant treasurer of the said company, and that about 2.30 o’clock on that day the treasurer of said company, Mr. Hugh L. Pope, confronted the assured with the charge of having misappropriated the funds of the trust company to the -extent of several thousand dollar’s; that the assured did not deny the accusation, but said he would go out and arrange to get the money to make his shortage good; that the assured thereupon left the office of the trust company, went to the business place of Penn. Loan Company, 62Í) Lafayette Avenue, purchased an automatic revolver and went out to a remote part of Druid Hill Park and was found there about 5.30 o’clock in the same afternoon with a bullet hole through his temples, and the revolver which he had purchased lying at his side with one of its chambers empty as a result of having' been recently discharged, then in the absence of any evidence of facts tending to show that the assured’s death was due to accident or natural causes, the conclusion must be it was due to suicide, and unless the jury find that there is some such evidence in this case their verdict should be for the plaintiff for the amount of the premium paid, to wit, the sum of $143.00, and no more.</p> <p>Second. — The jury are instructed that the policies of insurance sued upon in this case contain the following provision: '‘Suicide — In case of suicide committed while sane or insane within one year from the date on which this insurance shall become effective, the limit of recovery hereunder shall be the premiums paid.” It appears from the undisputed evidence that premiums amounting to $143.00 were paid by the assured. Vincent A-. Connolly, upon these policies prior to his death. It also appears from the undisputed evidence that the assured, Vincent A. Connelly, came to his death before the expiration of one year from the time the policies went into effect, so that if the assured committed suicide the plaintiff is only entitled to recover in this case the said amount of $143.00. And if the jury find from the evidence that on the 6th day of October, 1921, the said Vincent A. Connolly was and for some time had been in the employ of the Equitable Trust 'Company of Baltimore, as assistant secretary and as assistant treasurer of the said company, and that about 2.30 o’clock on that day the treasurer of said company, .Air. Hugh L. Pope, confronted the assured -with the charge of having misappropriated the funds of the trust company to the extent of several thousand; that the .assured did not deny the accusation, but said he would go ■out and arrange to get the money to make his shortage good; that the assured thereupon left the office of the trust company, went to the business place of the Penn. Loan Company, 629 Lafayette Avenue, purchased an automatic revolver and went out to a remote part- of Druid Hill Park and was found there about 5.30 o’clock in the same afternoon .with a bullet hole through his temple, and the revolver which he had purchased lying at his side with one of its chambers empty as a result of having been recently discharged, then in the absence of any evidence of facts tending to show that the assured’s death was due to accident or natural causes, the conclusion must be it was due to suicide, and (unless the jury find that there is some such evidence in this ease) their verdict should be for the plaintiff -for the amount of the premium paid, to wit, the sum of $143.00 and no more.</p> <p>And the jury are instructed that no evidence has been adduced in this case legally sufficient, even when coupled with the ordinary presumption against suicide to entitle the jury to find that the assured’s death was due to accidental or natural caues, or any other cause except suicide.</p> <p>Third. — The court instructs the jury that it appears from the undisputed evidence in this case that the death of Vincent A. Connolly was due to suicide, and therefore the plaintiff is entitled to recover only the amount of the premiums paid on the policies prior to his death, to wit, the sum of $143 and the verdict of the jury should he for the plaintiff for that amount.</p> <p>Fowih. — The court instructs the jury that the law always presumes that a man did not intentionally kill himself, but this presumption may he rebutted or overcome, so that if there is a preponderance of evidence showing that he did commit suicide, if the jury so find, then the jury may find that he committed suicide, unless they shall find from the evidence that ]iis death was due to other causes than suicide.</p> <p>Fifth. — The jury are instructed that, while the presumption of law is that when a man is found dead his death is due to accidental or natural causes, nevertheless this presumption only applies in the absence of facts tending to explain the manner of said death, and when facts of such a character are presented, the jury are then a.t liberty to determine from said facts whether the death, was due to accidental or natural causes, or was the result of the intentional act of the accused.</p> <p>;S'i.vth. — No evidence has been adduced in this ease legally sufficient to show that there is any reasonable probability that Connolly’s death was due to any other cause than suicide.</p>

). Exceptions by Cleveland B. Bealmear and Samuel E. Boyd to the ratification of a sale made to them by Biehard B. Tippett, committee of Bose Leach, a lunatic. From an order overruling said exceptions and ratifying the sale, said purchasers appeal.

). Petition by Iihett Miller Megear against Joseph T. England for an order authorizing a visit to her by her son, Joseph T. England, Jr., From an order granting the prayer of the petition and dismissing his cross-petition, said Joseph T. England appeals.

<p>Motor Vehicles — Gasoline Tax — Hiring Oars.</p> <p>Acts 1922, ch. 522, known as the “two cent gasoline tax bill,” is in substitution for and not in addition to the previously existing method of taxing motor vehicles, except as to such items as are in terms excepted from its operation. p. 586</p> <p>The provision of the act that the figure to be certified by the Governor as necessary to make up the difference between the sums derived from the gasoline tax and the receipts from the registration of motor vehicles for a like period “shall be the sum per horse power to be charged and collected in the case of all gasoline propelled motor vehicles equipped with pneumatic tires required by law to be registered in this State in lieu of the rate per horse power now authorized by law,” applies to “hiring cars” as well as to other motor vehicles within the terms of the description. pp. 586-588</p>

<p>Appeal from the Circuit Court of Baltimore City (Duffy, J.).</p> <p>Bill by William S. Townsend and others, executors and trustees under the will of John W. Grace, deceased, against Luther Grace, Fannie B. Ball, the Johns Hopkins Hospital, and others, for the construction of said will. From the decree rendered, said F'annie B. Ball appeals.</p>

Appeals from tbe Circuit Court for Somerset County, In Equity (Duer, J.). Bill for divorce by Gordon Sterling against Olevia Sterling'. Erorn a decree of divorce as prayed, and from an order dismissing defendant’s petition for costs of an appeal by her, counsel fees for prosecution of her appeal, and continuance of alimony pending the appeal, said defendant appeals.

). Action by the Maryland Casualty Company, for its own use, and for the use of Iva N. Harbaugh ,and others, against the Union Bridg’e Electric Manufacturing Company. From certain orders in favor of defendant, plaintiff appeals.