The record in the above entitled case contains two appeals one appearing on the docket of this Court as No. 48, being the appeal of Nettie J. Shoop against the Fidelity and Deposit Company of Maryland, and the other being No. 60, an appeal of the Fidelity and Deposit Company from a judgment rendered against it in favor of Nettie J. Shoop.
A motion has been filed to dismiss the first appeal, and that motion must prevail. The suit in this case was one instituted under what is known as the Practice Act of Baltimore City [Balto. City Charter, sec. 312 (see Balto. City Code, 1906, p. 265)], to recover for the death of Frank J. Shoop, husband of Nettie J. Shoop, upon an accident policy issued by the Fidelity Company in June, 1911. To the suit so brought the defendant at first filed five pleas, within the time required by the statute, and on Feb. 18, 1914, by leave of the Court in writing withdrew all of the pleas theretofore filed on its behalf and filed in lieu a new plea supported by affidavit and certificate. This ruling of the Court in permitting the defendant to withdraw the pleas as originally filed constituted the ground of Mrs. Shoop's appeal. The order for the appeal states that it is also from the ruling of the Court overruling the motion of the plaintiff for a judgment, but no such motion appears in the record. On the same day that the pleas were withdrawn and the new plea filed, the plaintiff filed a replication thereto, a jury was empanelled for the trial of the case and on the next day a verdict was returned in favor of the plaintiff for $2,887.50, the full amount claimed. There are two obvious reasons why the motion to dismiss must prevail. In the first place by the filing of replication and proceeding to trial the plaintiff waived her right to raise, on appeal, the correctness of the ruling of the Court. The proper course to have pursued, if it was desired to call in question the correctness of that ruling, would have been to decline to reply and suffer a judgment by default to be entered against her, and appeal from *Page 134 such judgment. Not having done so, she is now precluded from raising the question. Traber v. Traber, 50 Md. 1. In the second place, even if the ruling of the Court had been incorrect, and she could raise that question on her appeal in this case, she was, nevertheless, not injured by the ruling of the Court because the verdict returned, and upon which judgment was entered, was for the full amount of her claim. Coates v. Mackey,56 Md. 420; Bear v. Robbins, 117 Md. 213.
Turning now to Case No. 60, the appeal of the Fidelity and Deposit Company against Shoop, the case presented is briefly as follows: Mr. Shoop was the agent of the Mianus Motor Works. On the 5th of June, 1911, he took out what is commonly known as an accident policy of insurance, with the defendant company, for the sum of $2,500. The policy contained a provision that in addition to the sum named, the same should be augmented by an accumulative amount, such as would increase the sum specified in the said policy by 10%, upon an annual renewal of the policy. The policy was renewed in June, 1912. On the 20th of November in the same year Mr. and Mrs. Shoop separated about half-past eight in the morning, she going to the store or office on Market Space in the City of Baltimore, and he to the shipyard of which he was the tenant, at or near the foot of Stevenson Street. A little after 12 o'clock Mr. Shoop telephoned his wife. Not far from the same hour he was seen by a witness, Crispens, standing with another man at the engine room door in the shipyard. About an hour later as this witness, Crispens, passed the shipyard he saw a man lying underneath a boat which had been hauled up on the shipyard railway, and going over there found that the man so prostrate was Mr. Shoop, who was lying under the boat, dead.
Under this state of facts the plea which was filed by the defendant company to the suit brought on the policy, was as follows: *Page 135
"This policy constituted the entire contract of insurance, except that if the insured sustains injury, fatally or otherwise, or contracts disease while exposed to the hazard of an occupation classed by the company as more hazardous than that stated in the schedule of warranties, except ordinary duties about residence or while engaged in recreation, the company will pay such proportion of the indemnities provided in the policy as the premium paid by the insured will purchase at the rate but within the limits fixed by the company for such more hazardous occupation.
"That said Frank J. Shoop was, at the time he sustained the injury set out in the declaration, exposed to the hazard of an occupation classed by the company as more hazardous than that stated in the schedule of warranties, to wit: That of machinist or ship-carpenter or shipwright; and that the proportion of the indemnities provided in said policy which the premium paid by the insured will purchase at the rate fixed by the company for such occupation of machinist or ship-carpenter or shipwright is six-elevenths; so that the plaintiff is entitled to recover in this action the sum of $1,500, and no more."
When the case was reached for trial and the jury had been sworn, the defendant moved the Court to grant to it the right to open and close the case, which motion the Court refused, and this ruling constitutes the first bill of exceptions. The theory of the defendant upon this motion is substantially this: That by its plea it admitted the prima facie right of the plaintiff to recover, and that it had tendered the only issue in the case and, therefore, had assumed the burden of proof; that having assumed the burden of proof, it followed as a matter of right that it was entitled to the opening and closing of the case, and that the denial of this right operated to the prejudice of the defendant and forms a sufficient ground for reversal. Many cases were cited to sustain this view, and in fact if *Page 136 the cases as presented corresponded with the theory announced by the defendant, the vast weight of authorities is in favor of the position contended for. In the Federal Courts, and in some cases in the State Courts it has been held that the conduct of the trial and the ruling of the trial Court upon a matter of this nature is within the discretion of the Court, and that from the exercise of such discretion no appeal will lie. In some States there are procedural rules which regulate the matter, but independent of those the general principle is that stated in 15Ency. Plead. Prac. 183-4, and adopted in this State in the case of Baltimore City v. Hurlock, 113 Md. 674, that "The test is that the right belongs to the party against whom judgment would be rendered if no evidence were introduced on either side." Many other cases might be cited which lay down the same rule, but a careful examination of these cases shows the essential point of difference between them and the case at bar. This suit was instituted by the plaintiff for the recovery of $2,500, together with a 10% accumulation, making $2,750. The plea of the defendant did not concede the right of the plaintiff prima facie to recover such sum, but affirmatively set up the defense appearing in the plea, limiting or seeking to limit the right of recovery of the plaintiff to $1,500. This amounted to a denial of the plaintiff's claim to the extent of $1,250, and, therefore, required the plaintiff to adduce evidence in order to sustain her claim for the full amount. The case is similar, therefore, to the case of Cilley v. The Preferred Accident Ins. Co., 187 N.Y. 517, in which the answer to the suit on an accident insurance policy, set up the defense that the death of the insured did not result wholly from an accidental cause, but was in part the result of the intoxication of the insured, and this was held to be in effect a denial of a material allegation which the plaintiff was required to prove in order to recover, and that the defendant, therefore, was not entitled to open and close. In all such cases in determining who has the affirmative of an *Page 137 issue, regard is had to the substance and effect of the issue, rather than the form. McLees v. Felt, 11 Ind. 218. The rule stated is one not infrequently applied in suits arising otherwise than on contracts of insurance. In Grand Rapids R.R. Co. v.Horn, 41 Ind. 479, it was held, that where the only question submitted to the jury was the amount of the damages, that the right to open and close the case was properly given to the party claiming the damages. To the same effect is the case of Filby v. Turner, 9 Col. App. 202. No error, therefore, can be imputed to the trial Court for the ruling upon this motion.
This second exception arose during the examination of Edwin D. Loane, who was asked as to what the supervising duties of an agent were, in the line of business pursued by the insured. In the schedule of warranties constituting a part of the policy the insured had defined his occupation in his capacity of agent, as "having travelling and supervising duties, not setting up or testing machinery." It is insisted on behalf of the defendant that the word "supervise" or "supervising" has a clear, distinct, definite meaning, and therefore was not a subject upon which extraneous, parol evidence was permissible. With this contention this Court can not agree. A word may be shown to have a special meaning in a certain trade or occupation. Susquehanna Fertz.Co. v. White, 66 Md. 444. This was well illustrated in the case of Pinckney v. Dambmann, 72 Md. 173, where it was held that it was competent to show by parol in the case of a sale of three "cargoes" of phosphate that a certain number of tons formed the average cargo in that trade. And the following cases sufficiently show that the word "supervising" is one which may require definition or elaboration. In Schmidt v. AmericanMutual Accident Assurance Co., 96 Wis. 304, it was held, that "supervising" means taking part in the work, and that hence where an insured had stated that he was a confectioner, and that his duties were supervising, the insurance company would be liable on the policy, although *Page 138 the policy classified him as a proprietor, not working, and his death was caused while working; and in the National AccidentSociety of N.Y. v. Taylor, 42 Ill. App. 97, the term "supervising farmer," was a subject matter of construction and the Court said, "We think that the supervision of a farm includes in its care and oversight the doing of such incidental things as may be required for keeping it in order, and does not mean absolute idleness so far as physical labor is concerned." The action of the trial Court upon this exception will, therefore, be sustained.
At the close of Mr. Loane's testimony the defendant moved to strike out the testimony or some portions of it, exactly how much is not entirely clear, upon the ground that the witness was not sufficiently qualified. We must agree with the learned judge who tried the case, that the motion was not well founded. The witness had been engaged for twenty-seven years, as agent, in the selling of gas engines, particularly for use in boats, during which time he had represented a number of different concerns and knew from his own experience what was required of an agent, and in a general way that all agents followed substantially the same course of action in the discharge of their duties. The evidence given by him was, therefore, admissible, for as was said inDavis v. State, 38 Md. 15, "Expert witnesses who from study or experience have acquired a peculiar knowledge in regard to the matter in dispute are permitted to testify not only as to the facts but also to give their opinion based upon facts within their own knowledge or upon facts proved by other witnesses. The weight of the evidence is a matter for the consideration of the jury." We find no error, therefore, in the ruling set out in the third bill of exceptions.
The fourth bill arises from the refusal of the Court to grant a special prayer offered by the defendant at the close of the plaintiff's case. That prayer was as follows: "The Court instructs the jury that the statement of duties of Frank J. Shoop contained in the schedule of warranties, that is *Page 139 "having traveling and supervising duties, not setting up or testing machinery," did not notify the defendant that he would be exposed to the hazard and dangers incident to inspecting the sides and bottoms of boats while on marine railways, and the undisputed evidence in this case is that said Frank J. Shoop met his death while exposed to the dangers of an occupation as above described, and under the pleadings in this case their verdict must be for the pro rata part of the policy sued on, to wit, the sum of fifteen hundred dollars." This prayer was properly refused. In the schedule of warranties the insured had stated that he had supervising duties, the defendant had assumed to know of what those duties consisted; if it was in doubt or desired further or fuller information with regard thereto, it could readily have ascertained by inquiry, which there is no presence that it ever made, and it cannot now after loss take advantage of its own inaction as a ground of defense.
The fifth exception deals with the ruling of the Court upon the prayers, two having been granted at the instance of the plaintiff, and of the nine offered by the defendant five were granted and four refused.
The defendant's first prayer was to direct a verdict upon the theory set out in the defendant's plea, and is not supported by the evidence, and was therefore, properly refused.
The defendant's second prayer, which is marked third, denied the right of the plaintiff to recover interest, in case the jury should render a verdict for the sum of $1,500 only. Interest is ordinarily a matter which rests in the discretion of the jury, but a plaintiff may debar himself from a right to demand interest where a tender of an amount has been made and refused, and the amount of the verdict, exclusive of interest, does not exceed the amount tendered. There was no tender in this case, and it was within the province of the jury either to find for the plaintiff for the full amount of the claim, or for the plaintiff only for the proportionate amount of the sum named in the policy, and in either event *Page 140 in the absence of tender the allowance of interest was a matter for the exercise of the discretion of the jury.
The defendant's fourth prayer was palpably wrong; it required the jury, as in a criminal case, to be satisfied "Beyond a reasonable doubt" of certain enumerated facts, whereas, in a proceeding of this character all that could be required was that the jury should be satisfied by a preponderance of the evidence.
The defendant's eighth prayer reads as follows: "The jury are instructed that it is not necessary for them to find that Shoop was actually working upon the boat at the time he met his death in order to justify a verdict for the proportionate amount of said policy; that if they find that he was inspecting said boat, its position or injuries at the time of his death, then their verdict must be for the proportionate amount of said policy," and was properly refused. It required the jury to find in effect that the inspection of the vessel must defeat the plaintiff's claim for the full amount of the policy, and this in the face of the evidence that the inspection was a usual and customary part of the supervision.
The seventh prayer of the defendant, which was granted, was more favorable to it than it was in strictness entitled to, as it left to the jury to find a condition of fact which there was no evidence contained in the record sufficient to support, but if that were eliminated, when taken in connection with the defendant's fifth and sixth prayers, and the first prayer of the plaintiff, the case was fairly presented to the jury, and no reversible error can be ascribed to the lower Court in its several rulings upon the prayers.
The judgment below will accordingly be affirmed in No. 60.
Nettie J. Shoop's Appeal in No. 48 dismissed. Judgment inNo. 60 (The Fidelity Co.'s Appeal) affirmed; the Fidelity andDeposit Company of Maryland to pay the costs. *Page 141