The opinion of the court was delivered by: LUHRING
The declaration is in two counts and was filed on the 6th day of September, 1938, and prior to the effective date of the Rules of Civil Procedure for the District Courts of the United States, rule 86, 28 U.S.C.A. following section 723c.
It appears in each count of the declaration that the defendant corporation entered into a liability insurance agreement with one Frederic C. Newburgh, whereby it agreed that if any third person sustained injury or any property was damaged as a result of the operation of a certain Ford automobile either by said Frederic C. Newburgh or any member of his family or by any other person with his permission, the defendant, on behalf of such operator of the automobile, would contest, settle or compromise any claim for such injury or property damage in an amount not exceeding $10,000 for injury to any one person and not exceeding $20,000 for injury to two or more persons and not exceeding $1,000 property damage. It was further agreed that the defendant corporation would pay all costs incident to any litigation and any judgments rendered within the amounts indicated.
This agreement was in force on the 7th day of September, 1935, and it is alleged that on that day the plaintiff was an occupant in an automobile being operated by one Robert L. Crim in a southerly direction upon and across South River bridge on the road from Annapolis to Edgewater Beach in the State of Maryland, and that the Ford automobile owned by the said Frederic C. Newburgh was being operated by his minor son, Charles Newburgh, with his permission, in a northerly direction upon and across the said bridge.
There was a collision which resulted in the death of Charles Newburgh and serious injuries to the plaintiff. It is alleged that the collision was due to the negligence of Charles Newburgh in the management and operation of the Ford automobile.
At the time of this accident it was the law of Maryland that "executors and administrators * * * shall be liable to be sued in any court of law or equity, in any action (except for slander) which might have been maintained against the deceased * * *; provided, however, that any such action for injuries to the person to be maintainable against an executor or administrator must be commenced within six calendar months after the death of the testator or intestate." Article 93, § 106, Ann. Code of Md. (1935 Supp.).
The Court of Appeals of Maryland has declined to recognize the so-called "family car doctrine" as applied to the use of automobiles, and has uniformly held that the owner of an automobile, provided by him for the use of his family, is not liable to one injured by the negligence of his son, who was using it wholly for his own purpose and not for the purpose of such owner, and that the son had the father's special or general permission to use the car is immaterial in this regard. Myers v. Shipley, 140 Md. 380, 116 A. 645, 20 A.L.R. 1460; Baitary v. Smith, 140 Md. 437, 116 A. 651; Pollock v. Watts, 142 Md. 403, 121 A. 238; Schneider v. Schneider, 160 Md. 18, 152 A. 498, 72 A.L.R. 449; Price v. Miller, 165 Md. 578, 169 A. 800.
The plaintiff did not bring an action against the personal representatives of the deceased on or before March 6th, 1936.
The first count of the declaration in paragraph 11 alleges that in the month of December, 1935, "the defendant corporation * * * did * * * enter into an oral agreement with the plaintiff whereby the defendant corporation agreed that if the plaintiff would desist from filing suit against the estate of Charles Newburgh that the defendant corporation * * * would pay unto plaintiff a reasonable amount within its policy limit of $10,000, as payment to cover expenses incurred for medical and nursing services, loss of earnings, for pain and suffering, for damage to personal effects and other losses sustained from, to wit, September 7th, 1935 up to, to wit, the month of December, 1935, * * *. That to cover the aforesaid items the sum of, to wit, $9,940.00 was a just and reasonable amount * * *. That the defendant * * * did orally agree, * * to pay said amount of $8,940.00.That the defendant corporation * * * has failed to pay the said amount of $8,940.00 to the plaintiff. That as a result thereof, there is now due the plaintiff from the defendant corporation the sum of, to wit, $8,940.00 together with interest from, to wit, the 1st day of January, 1936."
Paragraph 13 of the second count of the declaration alleges that the plaintiff was induced to abandon her cause of action in the State of Maryland by reason of certain fraudulent representations of the defendant corporation, charging specifically that "by reason of said fraudulent conduct and fraudulent misrepresentations on the part of the defendant corporation, * * the plaintiff did not file suit within said six months period, and whereby and by reason of said fraudulent conduct and fraudulent misrepresentations the plaintiff was forever barred, after the expiration of the six months period, from filing suit for damages against the estate of Charles Newburgh, deceased, and, as a result thereof the plaintiff was, and is, damaged to the extent of, to wit, $10,000."
On the 28th day of September, 1938, and before the service of its answer to the complaint, the defendant, by its ex parte motion, pursuant to Rule 14 of the Rules of Civil Procedure, moved for leave to make one William Wendell a party to the action and that there be served upon him a summons and third party complaint. Leave was granted and summons and third party complaint were served upon both Wendell and the plaintiff, Virginia Crim, September 28th, 1938.
The third party complaint alleges that "on and prior to March 6, 1936, William Wendell was attorney for Virginia R. Crim, plaintiff, and was representing her in connection with the claim which she alleged she had for injuries sustained in a collision which occurred on September 7, 1935, between an automobile in which she was an occupant and an automobile operated by Charles Newburgh, son of Frederic C. Newburgh, as result of which Charles Newburgh was killed, said collision being the same one referred to and described in the declaration."
It is further alleged that at any time "between September 7, 1935, and March 6, 1936, when the said cause of action became barred under the laws of the State of Maryland, William Wendell, Third-Party Defendant, could have taken steps to institute an action for said Virginia R. Crim against the personal representatives of Charles Newburgh, deceased, in the courts of the State of Maryland. There was no other state or jurisdiction in which personal representatives of Charles Newburgh, deceased, could have been appointed ...