Bank of Baltimore v. Steele

Pattison, J., delivered the opinion of the Oourt. In this ease the appellant brought suit in the Baltimore Oity Oourt against the appellee, as endorser upon a prOmisr sory note given by William H. Baker to the appellant and endorsed by the appellee and others. The appellee having been summoned, appeared to the action in propria, persona and filed two pleas. *485 in the first lie alleged that at the time of the filing of the suit, he did not reside in. the City of Baltimore, but resided at, such time in Carroll County, and that no summons had been issued ag’ainst him and returned “non est” in Carroll County. In liis second plea, lie alleged that he did not reside in Baltimore City when the suit was instituted, nor did lie carry on any regular business, nor was be habitually engaged in any avocation or employment in said city, but that he resided. at the time of the issuing of the summons in the case, in Carroll County, where he still resides, and that no, summons had been issued against him and returned “non est” by the sheriff or coroner of Carroll County. A demurrer was filed and sustained to the first plea, and the, second was traversed, and after successive pleadings, ¡sute- were joined and the case proceeded to trial before the court, sitting as a jury. The trial resulted in a judgment for defendant’s) costs, and from that judgment this appeal was taken. The defendant, in his micontradicted evidence, stated that at the time the suit was instituted he resided with his family in Carroll County, where he. had lived all his life and where he had been practicing1 his profession since his. admission to the bar at the age of twenty-one years. He further stated that, in 1915, he was appointed hv the President of the United States, Surveyor of Customs for the Thirteenth Custom District, which embraces Maryland and the District of Columbia, with headquarters in Baltimore City. In Baltimore a room was assigned him in the Custom House, which he occupied, with his chief deputy, in the performance of his duty. Tlei or his subordinates were at times required M visit Annapolis, Ofisfield and Georgetown, and while at those places, the, office of the deputy stationed thereat. usually in the post office building1, was used by them. *486 The first month after his appointment, the1 appellee spent much of his time in Baltimore, organizing his force. After that, however, he went to the office in Baltimore two days in each week, generally on Wednesday and Saturday. The- rec'ords of the office were kept in the room or rooms assigned to and occupied hy him in the Custom House, and his mail, inmost part, was addressed to him there, although some of it went to his home in Carroll County. His duties, as stated hy him, were to supervise what are known as “inspectors,” whose duty it is to hoard vessels when they come into- port, and to examine the cargoes to ascertain if they are free or dutiable, also to watch vessels at night to. prevent smuggling. The court, at the conclusion of the evidence, refused to grant either of the two- prayers offered hy the plaintiff. The first of these prayers asked the eonrt to say as a matter of law, that no- legally sufficient evidence had been offered to sustain the- plea and a verdict must he found for the plaintiff. By the second prayer, the co-urt was asked to say as a matter o-f law, that should it find the facts we have .stated, which were specifically set out in the prayer, them the defendant wiasi engaged in an avocation or employment within the-statute and the verdict on the issue must he- for the plaintiff. The statute here invoked is sec. 147 of art. 75 of the Code, which provides that “any person who resides in one county, hut carries on any regular business or habitually engages in any avocation or employment in another county, may he sued in either county,” etc. This statute has been before this Court for construction a number o-f times: Chappell v. Lacy, 77 Md. 173; Gambrill v. Schooley, 95 Md. 260; Cromwell v. Willis and Homer, 96 Md. 260; Gemundt v. Shipley, 98 Md. 657. In Gemundt v. Shipley, supra, in which Judge S-chmuckek delivered the opinion of the Oo-urt, the defendant was sued hy the plaintiff to recover damages for the death of his infant son, whose death was caused hy the caving in of a *487 sand bank located on land in Baltimore City, owned by the defendant, who was. charged with negligence in allowing the sand bank to be in a dangerous condition on an open lot, which he permitted the children of the neighborhood to use as a play ground. The defendant set up the defense that he was not a resident of Baltimore City and neither carried on any regular business, nor was habitually engaged in any avocation or employment in that city, but that he resided in Frederick County. The court., after hearing the facts, offered upon the issue as to the jurisdiction of the court to hear the case, which we need not state here, decided in favor of the defendant, and in speaking of the. meaning of the statute said, “the regular business or habitual avocation or employment contemplated by sec. 182 of art. 75 of the Code (1888), which renders the person engaged therein liable to be sued in the county in which it is carried on, is a fixed occupation connected with some of the branches of trade, industry or commerce, or the continuous pursuit of some calling or profession, such as is ordinarily engaged in as a means of livelihood or for the purpose of gain or profit.” By the. nnoontradieted evidence in the case, the appellee was, at the time of the institution of this suit, a resident of Carroll County, where he had for many years practiced his profession from, which he had acquired a livelihood, and he at such time had no business, avocation or employment in the City of Baltimore, unless, the performance of his official duties as Surveyor of Custom,si can be so regarded. That it was not a regular business is shown from the fact that it was not “a fixed occupation connected with some of the branches of trade, industry or commerce',” and it would seem that the appellant shared in this, view, for in his prayer he does not ask the court- to hold, if it found the. facts mentioned in it to exist, that the: appellee was carrying on a “regular business,” but the court is simply asked to hold upon such *488 finding that he was engaged in an avocation or employment within the statute. In our opinion the court was right in refusing this prayer, for the facts mentioned do not, we think, warrant tire conclusion that the appellee at the time was. “habitually engaged in some avocation or employment” in the. Oity of Baltimore, for it cannot be said that he, while performing his official duties, was “in the pursuit of some calling or profession such as is ordinarily engaged in as a means of livelihood or for the purpose of gain or profit.” To. hold that he, a federal official whose duties called him to the Oity of Baltimore only two. days in each, week, was “carrying on a regular business” or was “habitually engaged in an avocation or employment” within tbe1 meaning of the statute would be, we think, extending the meaning of the statute far beyond what was intended by the Legislature that passed it, and would be giving to. it a construction, that has never been recognized or acted upon by the bar of this State during the many years since its passage. If the statute was given the construction contended for by the appellant, it would not only apply to the Surveyor of Ou&toms, a federal office, but aíslo to. the members of the State Boards and other officials of the State who. are, at times, called from their homes to Baltimore Oity or elsewhere in the State, to perform some of, or all, the duties imposed upon them in connection with their office. This, we think, is not the meaning, of the statute, nor was it ever so intended. As we entertain the views we have expressed, tbe judgment .appealed from will be affirmed. Judgment affirmed, with costs.