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came in contact with each other, but that the plaintiff's sister, operating their automobile at a high rate of speed, suddenly made it swerve to the right and towards the corner building, because she became startled by the near approach of the defendant's automobile.

The conflicting theories presented by the evidence were submitted to the jury by certain instructions, which made no reference to the right of way. But other instructions, granted at the defendant's request, informed the jury that he was entitled to the right of way at the time of the accident, if, as proved without dispute by the evidence, he was a duly registered physician and held a right of way permit issued by the city police department. In thus restricting the plaintiff's possible ground of recovery, the trial court gave effect to an ordinance of the mayor and city counsel of Baltimore, enacted in 1908, which provides: "The officers and men of the fire department with their fire apparatus of all kinds, when going to, or on duty, at or returning from a fire, and all ambulances, and the officers and men and vehicles of the police department and all physicians who have a police permit (as hereinafter provided), shall have the right of way in any street and through any procession, except over vehicles carrying the United States mail. The police department is hereby empowered to issue, upon application therefor, a permit for such right of way to any duly registered physician, which permit shall not be transferable."

Objection to the instructions based on this ordinance was made on the theory that it was not intended, so far as physicians are concerned, to effect the right of precedence at street intersections, now regulated by the general laws of the state (Acts 1920, chap. 506; Code, art. 56, § 163), but that, if the ordinance was designed to have such an application, it is inoperative because in conflict with the statute, and is

invalid as an unreasonable exercise of municipal authority. This contention is renewed on appeal from a judgment entered on a verdict for the defendant, which is attributed by the plaintiff to the instructions on the subject of the right of way.

The statute referred to provides, in part: "All vehicles shall have the right of way over other vehicles approaching at intersecting roads from the left, and shall give right of way to those approaching from the right."

This is one of the Code provisions relating to motor vehicles, which are "intended to be state wide in their effect," but which reserve the right to incorporated cities and towns to "prescribe and enforce reasonable traffic regulations

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applicable to all vehicular traffic, motor vehicles included. Code Pub. Gen. Laws, art. 56, § 133.

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In the recent case of State v. Brown, 142 Md. 27, 119 Atl. 684, the Baltimore ordinance which we have quoted was held to be a valid exercise of the police power delegated to the municipality, as against a challenge of its validity made by demurrer to an indictment for the violation of the right of way allowed by the ordinance to an ambulance using the city streets. It was said, in the opinion delivered in that case by Judge Stockbridge, to be the purpose of the ordinance that "fire apparatus, ambulances, police vehicles, and the vehicles of physicians who had registered with and been granted special privileges" by the police department of the city, should be exempted from the statutory rule requiring motor vehicles "to yield the right of way to other vehicles on a street or road approaching from the right." This language indicated a view of the court which is inconsistent with the contention in this case that the ordinance was not designed to give a right of way to physicians, holding police permits, in the operation of their automobiles at street intersections under ordinary circumstances, but was merely

(Md., 126 Atl. 82.)

intended to give them a right to proceed under unusual conditions by which general traffic might be retarded. The important question whether, as applied to physicians, the ordinance is a valid police measure, was not involved in the case of State v. Brown, and was consequently not there decided.

The ordinance gives priority in the use of the city streets to the four following classes of persons and vehicles: (1) "Officers and men of the fire department, with their fire apparatus of all kinds, when going to or on duty, at or returning from a fire;" (2) "all ambulances;" (3) "officers and men and vehicles of the police department;" and (4) "all physicians who have a police permit."

As applying to the individuals and vehicles embraced in the first, second, and third of those classes, the practicability of the ordinance cannot be doubted. They are all readily recognizable as having the functions which entitle them to the right of way given them in the use of the city thoroughfares. The uniforms of the firemen and policemen and the structure of the fire apparatus, ambulances, and police cars, immediately disclose their identity to those by whom the right of way must be yielded. But a physician or his car, when using the city streets, is not so easily distinguishable.

No provision is made by the ordinance for any sign by which the mission of the car or the vocation of the occupant is to be revealed. It is said that the defendant had a blue cross on his car, but this was not required by the ordinance. It escaped the notice of the plaintiff and the driver of the automobile in which she was injured, and it does not appear that, if they had observed the cross, they would have been aware of its significance. The sufficiency of such a sign is not a subject to our present inquiry.

The question as to the validity of the ordinance is to be decided ac

cording to its terms, and they do not provide that the display of a cross on a physician's car shall be a condition of the exercise of the right of way allowed him, or that he shall have such a privilege only when using a car or other vehicle of a designated type. It is not even stipulated that the right shall be available to him only for the purposes of his professional duties. The fact that a right of way permit has been issued to a physician by the police department is the sole ground upon which the ordinance directs other users of the public highways to recognize and respect the unqualified priority for which it provides. This duty is imposed without reference to the opportunity or ability of those upon whom it is charged to know that there is any occasion for them to yield the right of way to which they are ordinarily entitled under the state law. In the absence from the ordinance of any provisions to assure knowledge to the public of a superior right of way on the part of permit-holding physicians, its recognition in all instances could not reasonably be expected, and its attempted exercise would often be confusing and perilous. The question here is not whether the city could validly give physicians a general right of way on its streets under suitable regulations for the protection of the persons and interests affected, but whether an ordinance conferring the right without any qualifying and safeguarding provisions, and therefore directly tending to jeopardize the public safety which the statutory right of way rule was intended to promote, is a valid exertion of the police power delegated to the city by the state, and is within the purview of the "reasonable traffic regulations" which the legislature has authorized the city to prescribe and enforce.

In our judgment the ordinance, in so far as it relates to the exercise of a right of way by physicians under such conditions as the evidence in

this case describes, clearly fails to

Municipal corporations— giving right of way to physicians at street intersections -validity.

meet the test of reasonableness which, in view of the statute on the subject and the accepted principle of adjudication in such cases, it is our duty to apply. State v. Hyman, 98 Md. 596, 64 L.R.A. 637, 57 Atl. 6, 1 Ann. Cas. 742; State v. Brown, supra; Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239; 28 Cyc. 369; 19 R. C. L. 805-807.

No criticism is made on appeal of any granted prayers of the defendant other than those which denied

the plaintiff's claim of the right of way for the car in which she was riding at the time of the collision, but, in our opinion, there was error in the instructions which had that effect. In other respects the case was properly submitted to the jury. An exception to the admission in evidence of the ordinance and of the permit issued to the defendant by the police department should have been sustained, for the reasons we have stated, in deciding the question raised by the ruling which has been chiefly discussed.

Judgment reversed, with costs, 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 street or highway intersections, see annotation in 21 A.L.R. 974, and 37 A.L.R. 493.

In most of the large municipalities, either by statute or ordinance, the vehicles of the fire department, police department, and of hospitals, and sometimes of physicians, of salvage corps, and of insurance patrols, are given the right of way in the streets or highways, and in many cases involving the effect of such right, the statutes or ordinances giving it are assumed to be valid; in but a few cases have their validity been passed upon.

The courts which have passed upon the question have held or recognized that such an ordinance is a proper exercise of the police power as applied to some classes of vehicles, but not as to others.

Thus, in the reported case (KIDD V. CHISSEL, ante, 20) an ordinance giving the right of way to the fire department, police department, ambulances, and physicians with police permits, is held invalid as to physicians, no provision being made for identifying their cars. As shown in that case, the validity of the same ordinance was upheld in State v. Brown (1922) 142 Md. 27, 119 Atl. 684, a case involving an

ambulance, its validity as applied to physicians' cars not being involved or passed upon. It will be observed that the court in the reported case (KIDD V. CHISSEL) concedes the validity of an ordinance as applied to such ambulances, fire apparatus, and vehicles of the police department.

It was held in Louisville R. Co. v. Louisville Fire & Life Protective Asso. (1913) 151 Ky. 644, 43 L.R.A. (N.S.) 600, 152 S. W. 799, Ann. Cas. 1915A, 89, that the legislature could not grant to a fire and protective association organized, owned, and controlled by fire insurance companies to attend fires and protect persons and property, a right of way in a public street superior to that of the citizens generally, under a Constitution providing that no exclusive privileges shall be granted, except in consideration of public service. The court said: "The public service that may entitle certain individuals, including private corporations, to privileges and immunities not enjoyed by the public generally, is a public service that carries with it some measure of public control and supervision; and the right of public control and authority must precede or accompany the grant of the privilege, and be so much a part of it that the privilege cannot be exercised without

incurring the responsibility and liability that attach to the performances of public duties. In short, the beneficiary of every grant of special privileges must be, in some degree, the servant of the public, and subject to the control and authority of some public agency."

But in Sutter v. Milwaukee Bd. of Fire Underwriters (1916) 164 Wis. 532, 160 N. W. 57, an ordinance giving the fire patrol of a board of fire underwriters a right of way upon the city streets when going to and returning from a fire, was sustained, the court saying, in reference to the preceding case, that under a peculiar constitutional provision in Kentucky, a grant or right of way to a corporation of similar nature was held void, but the reasoning does not seem persuasive to the Wisconsin court, and there is no such constitutional provision in Wisconsin. The court further said: "While the defendant is not a municipal corporation, it is not a corporation organized for private gain, but for the purpose of maintaining a fire patrol, whose duty it is to 'discover and prevent fires and to save and preserve life and property at . fires.' . . . This is a function which, if performed by the city itself, would be governmental or public. . . . It is conceded that, if the city performs this duty with its own apparatus and employees, it may properly give them the right of way on the streets in order that the work may be more efficiently done. There seems no reason why the city might not, if it thought best, contract with independent agencies to maintain fire apparatus and employees for the extinguishing of fires and the saving of property, retaining, of course, the power of control over their work, and, if so, it must follow that the city could also give such apparatus and employees the right of way over the streets. To hold otherwise would be to hold that the city could not choose such a method except at the

of

expense of efficiency. In the present case a private corporation not organized for gain is, at its own expense, and in pursuance of legislative authority, assisting the city in the discharge of its public duty. It is subject to the control of the head of the city fire department while it is discharging that duty. So far as the community is concerned, it is practically an agency doing a public work under public control. The city cannot clothe that agency with immunity from its own negligence, but no reason is perceived, either in law or morals, why it may not, in the interest of public welfare, endow it with the same privileges on the public streets while engaged in public work, as it gives to its own apparatus and employees engaged in the same work."

A municipal charter provision granting to an insurance patrol the right of way in the public streets was sustained tained in Duffghe v. Metropolitan Street R. Co. (1905) 109 App. Div. 603, 96 N. Y. Supp. 324, affirmed without opinion in (1907) 187 N. Y. 522, 79 N. E. 1104, without any discussion of the question.

And in Knox v. North Jersey Street R. Co. (1904) 70 N. J. L. 347, 57 Atl. 423, 1 Ann. Cas. 164, there is a dictum to the effect that a statute or ordinance giving the right of way in a street to the fire department would be valid, as the court, in holding that the fire wagons were subject to the rule of the road in the absence of legislation giving them the right of way, said: "It may be conceded that the importance of having a fire engine or truck reach its destination as speedily. as possible makes it advisable that it should be given superior rights in the public streets, and that trolley cars and other vehicles should be required to yield it the right of way at street crossings. Such a right may be granted by legislative enactment, and, to some extent at least, by municipal regulation." G. V. I.

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Insurance, § 398-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

waiver.

incomplete answer

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is continuous, within the meaning of
an accident insurance policy, when it
follows directly from the accidental
hurt, within such time as the proc-
esses of nature consume in bringing
the person affected to a state of in-
capacity to prosecute his occupation.
[See 14 R. C. L. 1317. See also note
in 24 A.L.R. 226.]

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 Messrs. J. E. McFadden, O. Q. Claflin, Jr., and Ross J. Ream, for appellant:

In taking applications for insurance, it is necessary and proper that the company have before it the necessary information on what it may determine to be material matters, for the purpose of ascertaining whether or not it will issue a policy, and the question of the number of claims that he may have made is certainly important in determining the moral risk of the applicant.

Becker v. Kansas Casualty & Surety Co. 105 Kan. 99, 181 Pac. 549.

A policy of insurance issued to cover such injuries as, independently and exclusively of all other causes, shall wholly and continuously disable the insured from the date of accident, etc., means exactly what it says, and injuries which disable for a time and from which the insured thereafter recovers are to be paid for only for such period of continuous disability as is shown.

of the court.

Continental Casualty Co. v. Wade, 101 Tex. 102, 105 S. W. 35; Doyle v. New Jersey Federal & Plate Glass Ins. Co. 168 Ky. 789, 182 S. W. 944, Ann. Cas. 1917D, 851.

Messrs. J. H. Brady and T. F. Railsback, for appellee:

Plaintiff having given a truthful answer, although not complete, and although not giving all of the matters required by defendant's question, and although showing on its face that it was an imperfect answer, defendant is estopped to question the validity of the policy issued after it accepted that answer as being sufficient.

Golding v. Modern Woodmen, 213 Mo. App. 171, 250 S. W. 933.

Under the terms of the policy, if plaintiff's injury and infection subsided and then reoccurred, so that he became totally disabled thereby, and was thence further continuously disabled, then he could recover.

14 R. C. L. § 491, pp. 1315, 1316; Industrial Mut. Indemnity Co. v. Hawkins, 94 Ark. 417, 29 L.R.A. (N.S.) 635,

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