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came in contact with each other, but invalid as an unreasonable exercise that the plaintiff's sister, operating of municipal authority. This contheir automobile at a high rate of tention is renewed on appeal from a speed, suddenly made it swerve to judgment entered on a verdict for the right and towards the corner the defendant, which is attributed building, because she became star- by the plaintiff to the instructions tled by the near approach of the de- on the subject of the right of way. fendant's automobile.

The statute referred to provides, The conflicting theories presented in part: "All vehicles shall have by the evidence were submitted to the right of way over other vehicles the jury by certain instructions, approaching at intersecting roads which made no reference to the from the left, and shall give right of right of way. But other instructions, way to those approaching from the granted at the defendant's request, right." informed the jury that he was en- This is one of the Code provisions titled to the right of way at the time relating to motor vehicles, which of the accident, if, as proved with- are "intended to be state wide in out dispute by the evidence, he their effect," but which reserve the was a duly registered physician and right to incorporated cities and held a right of way permit issued towns to "prescribe and enforce reaby the city police department. In sonable traffic regulations thus restricting the plaintiff's pos- applicable to all vehicular traffic, sible ground of recovery, the trial motor vehicles included.

" 4 court gave effect to an ordinance Code Pub. Gen. Laws, art. 56, $ 133. of the mayor and city counsel of In the recent case of State V. Baltimore, enacted in 1908, which Brown, 142 Md. 27, 119 Atl. 684, the provides: "The officers and men of Baltimore ordinance which we have the fire department with their fire quoted was held to be a valid exerapparatus of all kinds, when going cise of the police power delegated to to, or on duty, at or returning from the municipality, as against a chala fire, and all ambulances, and the lenge of its validity made by demurofficers and men and vehicles of the rer to an indictment for the violapolice department and all physicians tion of the right of way allowed by who have a police permit (as here- the ordinance to an ambulance using inafter provided), shall have the the city streets. It was said, in the right of way in any street and opinion delivered in that case by through any procession, except over Judge Stockbridge, to be the purvehicles carrying the United States pose of the ordinance that "fire apmail. The police department is paratus, ambulances, police vehicles, hereby empowered to issue, upon and the vehicles of physicians who application therefor, a permit for had registered with and been grantsuch right of way to any duly reg- ed special privileges" by the police istered physician, which permit department of the city, should be shall not be transferable."

exempted from the statutory rule Objection to the instructions requiring motor vehicles “to yield based on this ordinance was made the right of way to other vehicles on on the theory that it was not intend- a street or road approaching from ed, so far as physicians are con- the right." This language indicated cerned, to effect the right of preced- a view of the court which is inconence at street intersections, now sistent with the contention in this regulated by the general laws of the case that the ordinance was not destate (Acts 1920, chap. 506; Code, signed to give a right of way to phyart. 56, § 163), but that, if the ordi- sicians, holding police permits, in nance was designed to have such an the operation of their automobiles application, it is inoperative because at street intersections under ordiin conflict with the statute, and is nary circumstances, but was merely

(- Md.

126 Atl. 82.) intended to give them a right to cording to its terms, and they do not proceed under unusual conditions provide that the display of a cross by which general traffic might be re- on a physician's car shall be a contarded. The important question dition of the exercise of the right of whether, as applied to physicians, way allowed him, or that he shall the ordinance is a valid police meas

have such a privilege only when usure, was not involved in the case of ing a car, or other vehicle of a desigState v. Brown, and was consequent- nated type. It is not even stipulated ly not there decided.

that the right shall be available to The ordinance gives priority in

him only for the purposes of his prothe use of the city streets to the four fessional duties. The fact that a following classes of persons and right of way permit has been issued vehicles: “

(1) "Officers and men of to a physician by the police departthe fire department, with their fire ment is the sole ground upon which apparatus of all kinds, when going the ordinance directs other users of to or on duty, at or returning from the public highways to recognize a fire;" (2) "all ambulances;" (3) and respect the unqualified priority "officers and men and vehicles of the for which it provides. This duty is police department;" and (4) “all imposed without reference to the physicians who have a police per- opportunity or ability of those upmit.”

on whom it is charged to know that As applying to the individuals there is any occasion for them to and vehicles embraced in the first, yield the right of way to which they second, and third of those classes, are ordinarily entitled under the the practicability of the ordinance state law. In the absence from the cannot be doubted. They are all ordinance of any provisions to asreadily recognizable as having the sure knowledge to the public of a functions which entitle them to the superior right of way on the part of right of way given them in the use permit-holding physicians, its recof the city thoroughfares. The uni- ognition in all instances could not forms of the firemen and policemen reasonably be expected, and its atand the structure of the fire appara- tempted exercise would often be tus, ambulances, and police cars,

confusing and perilous. The quesimmediately disclose their identity tion here is not whether the city to those by whom the right of way

could validly give physicians a genmust be yielded. But a physician or

eral right of way on its streets unhis car, when using the city streets, der suitable regulations for the prois not so easily distinguishable. tection of the persons and interests

No provision is made by the ordi- affected, but whether an ordinance nance for any sign by which the conferring the right without any mission of the car or the vocation of qualifying and safeguarding provithe occupant is to be revealed. It is sions, and therefore directly tending said that the defendant had a blue to jeopardize the public safety which cross on his car, but this was not the statutory right of way rule was required by the ordinance. It es- intended to promote, is a valid excaped the notice of the plaintiff and ertion of the police power delegated the driver of the automobile in to the city by the state, and is withwhich she was injured, and it does in the purview of the "reasonable not appear that, if they had observed traffic regulations” which the legisthe cross, they would have been lature has authorized the city to preaware of its significance. The suf- scribe and enforce. ficiency of such a sign is not a sub- In our judgment the ordinance, in ject to our present inquiry.

so far as it relates to the exercise of The question as to the validity of a right of way by physicians under the ordinance is to be decided ac- such conditions as the evidence in this case describes, clearly fails to the plaintiff's claim of the right of

meet the test of rea- way for the car in which she was Municipal corporations,

sonableness which, riding at the time of the collision, giving right in view of the stat- but, in our opinion, there was error of way to physicians at street ute on the subject in the instructions which had that intersections -validity.

and the accepted effect. In other respects the case

principle of adjudi- was properly submitted to the jury. cation in such cases, it is our duty An exception to the admission in to apply. State v. Hyman, 98 Md. evidence of the ordinance and of the 596, 64 L.R.A. 637, 57 Atl. 6, 1 Ann. permit issued to the defendant by Cas. 742; State v. Brown, supra; the police department should have Baltimore v. Radecke, 49 Md. 217, been sustained, for the reasons we 33 Am. Rep. 239; 28 Cyc. 369; 19 R. have stated, in deciding the quesC. L. 805-807.

tion raised by the ruling which has No criticism is made on appeal of been chiefly discussed. any granted prayers of the defend- Judgment reversed, with costs, ant other than those which denied and new trial awarded.

ANNOTATION.

Validity of statute or ordinance giving right of way in streets or highways to

certain classes of vehicles.

Generally as to right of way at ambulance, its validity as applied to street or highway intersections, see physicians' cars not being involved annotation in 21 A.L.R. 974, and 37 or passed upon. It will be observed A.L.R. 493.

that the court in the reported case In most of the large municipalities, (KIDD V. CHISSEL) concedes the vaeither by statute or ordinance, the lidity of an ordinance as applied to vehicles of the fire department, police such ambulances, fire apparatus, and department, and of hospitals, and vehicles of the police department. sometimes of physicians, of salvage It was held in Louisville R. Co. v. corps, and of insurance patrols, are Louisville Fire & Life Protective Asso. given the right of way in the streets (1913) 151 Ky. 644, 43 L.R.A.(N.S.) or highways, and in many cases in- 600, 152 S. W. 799, Ann. Cas. 1915A, volving the effect of such right, the 89, that the legislature could not grant statutes or ordinances giving it are to a fire and protective association assumed to be valid; in but a few organized, owned, and controlled by cases have their validity been passed fire insurance companies to attend upon.

fires and protect persons and property, The courts which have passed upon a right of way in a public street suthe question have held or recognized perior to that of the citizens generalthat such an ordinance is a properly, under a Constitution providing that exercise of the police power as applied no exclusive privileges shall be grantto some classes of vehicles, but not as ed, except in consideration of public to others.

service. The court said: “The public Thus, in the reported case (KIDD v. service that may entitle certain inCHISSEL, ante, 20) an ordinance giv- dividuals, including private corporaing the right of way to the fire depart- tions, to privileges and immunities ment, police department, ambulances, not enjoyed by the public generally, is and physicians with police permits, is a public service that carries with it held invalid as to physicians, no pro- some measure of public control and vision being made for identifying their supervision; and the right of public cars. As shown in that case, the va- control and authority must precede or lidity of the same ordinance was up- accompany the grant of the privilege, held in State v. Brown (1922) 142 Md. and be so much a part of it that the 27, 119 Atl. 684, a case involving an privilege cannot be exercised without

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incurring the responsibility and lia- expense of efficiency. In the present bility that attach to the performances case a private corporation not organof public duties. In short, the bene

In short, the bene- ized for gain is, at its own expense, ficiary of every grant of special privi- and in pursuance of legislative auleges must be, in some degree, the thority, assisting the city in the disservant of the public, and subject to charge of its public duty. It is subject the control and authority of some pub- to the control of the head of the city lic agency."

fire department while it is discharging But in Sutter v. Milwaukee Bd. of that duty. So far as the community Fire Underwriters (1916) 164 Wis. is concerned, it is practically an 532, 160 N. W. 57, an ordinance giving agency doing a public work under pubthe fire patrol of a board of fire under- lic control. The city cannot clothe writers a right of way upon the city that agency with immunity from its streets when going to and returning own negligence, but no reason is perfrom a fire, was sustained, the court ceived, either in law or morals, why saying, in reference to the preceding it may not, in the interest of public case, that under a peculiar constitu- welfare, endow it with the same tional provision in Kentucky, a grant privileges on the public streets while or right of way to a corporation of engaged in public work, as it gives to similar nature was held void, but the its own apparatus and employees enreasoning does not seem persuasive gaged in the same work.” to the Wisconsin court, and there is A municipal charter provision grantno such constitutional provision in ing to an insurance patrol the right Wisconsin. The court further said: of way in the public streets was sus“While the defendant is not a munic- tained in Duffghe v. Metropolitan ipal corporation, it is not a corpora- Street R. Co. (1905) 109 App. Div. 603, tion organized for private gain, but 96 N. Y. Supp. 324, affirmed without for the purpose of maintaining a fire opinion in (1907) 187 N. Y. 522, 79 N. patrol, whose duty it is to discover E. 1104, without any discussion of the and prevent fires and to save and pre- question. serve life and property at

And in Knox v. North Jersey Street fires. ... This is a function which, R. Co. (1904) 70 N. J. L. 347, 57 Ati. if performed by the city itself, would 423, 1 Ann. Cas. 164, there is a dictum be governmental or public.. . . It is to the effect that a statute or ordiconceded that, if the city performs nance giving the right of way in a this duty with its own apparatus and street to the fire department would be employees, it may properly give them valid, as the court, in holding that the the right of way on the streets in order fire wagons were subject to the rule that the work may be more efficiently of the road in the absence of legisladone. There seems no reason why the tion giving them the right of way, city might not, if it thought best, con- said: “It may be conceded that the tract with independent agencies to importance of having a fire engine or maintain fire apparatus and employees truck reach its destination as speedily for the extinguishing of fires and the as possible makes it advisable that it

of property, retaining, of should be given superior rights in the course, the power of control over their public streets, and that trolley cars work, and, if so, it must follow that and other vehicles should be required the city could also give such apparatus to yield it the right of way at street and employees the right of way over crossings. Such a right may be grantthe streets. To hold otherwise would ed by legislative enactment, and, to be to hold that the city could not some extent at least, by municipal choose such a method except at the

regulation."

G. V. I.

saving

JULIUS H. RABIN

V.
CENTRAL BUSINESS MEN'S ASSOCIATION, Appt.

Kansas Supreme Court – June 7, 1924.

(116 Kan. 280, 226 Pac. 764.) Insurance, $ 3984 - breach of warranty as to other insurance,

1. In an application for accident insurance, a warranty that no other insurance had been canceled is not breached by the prior voluntary surrender of a policy by the assured.

[See note on this question beginning on page 30.] Insurance, $ 499 — incomplete answer is continuous, within the meaning of waiver.

an accident insurance policy, when it 2. When, upon the face of an application for accident insurance, a ques

follows directly from the accidental tion appears to be incompletely an

hurt, within such time as the procswered, and the insurer issues a policy esses of nature consume in bringing without further inquiry, it waives the the person affected to a state of inincompleteness of the answer.

capacity to prosecute his occupation. Insurance, 8 651 – immediate and

[See 14 R. C. L. 1317. See also note continuous injury. 3. An injury develops at once and

in 24 A.L.R. 226.] Headnotes by HARVEY, J.

APPEAL by defendant from a judgment of the District Court for Wyandotte County (McCamish, J.) in favor of plaintiff in an action brought to recover the amount alleged to be due on an accident insurance policy. Affirmed.

The facts are stated in the opinion of the court.

Messrs. J. E. McFadden, O. Q. Claf- Continental Casualty Co. v. Wade, lin, Jr., and Ross J. Ream, for appel- 101 Tex. 102, 105 S. W. 35; Doyle v. lant:

New Jersey Federal & Plate Glass Ins. In taking applications for insur- Co. 168 Ky. 789, 182 S. W. 944, Ann. ance, it is necessary and proper that Cas. 1917D, 851. the company have before it the neces- Messrs. J. H. Brady and T. F. Railssary information on what it may de- back, for appellee: termine to be material matters, for Plaintiff having given a truthful the purpose of ascertaining whether answer, although not complete, and or not it will issue a policy, and the although not giving all of the matquestion of the number of claims that ters required by defendant's question, he may have made is certainly impor- and although showing on its face that tant in determining the moral risk of it was an imperfect answer, defendant the applicant.

is estopped to question the validity of Becker v. Kansas Casualty & Surety the policy issued after it accepted that Co. 105 Kan. 99, 181 Pac. 549.

answer as being sufficient. A policy of insurance issued to cov- Golding v. Modern Woodmen, 213 er such injuries as, independently and Mo. App. 171, 250 S. W. 933. exclusively of all other causes, shall Under the terms of the policy, if wholly and continuously disable the plaintiff's injury and infection subinsured from the date of accident, sided and then reoccurred, so that he etc., means exactly what it says, and became totally disabled thereby, and injuries which disable for a time and was thence further continuously disfrom which the insured thereafter re- abled, then he could recover. covers are to be paid for only for such 14 R. C. L. § 491, pp. 1315, 1316; Inperiod of continuous disability as is dustrial Mut. Indemnity Co. v. Hawshown.

kins, 94 Ark. 417, 29 L.R.A. (N.S.) 635,

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