Frazier v. Waterman Steamship Corp.

⁴⁴⁰ Brune, C. J., delivered the opinion of the Court. The plaintiff brought suit in the Superior Court of Baltimore City against Waterman Steamship Corporation, owner of the S. S. “La Salle”, for permanent injuries alleged to have been sustained by him, while working as a stevedore aboard that vessel, as a result of a fall through a hatch from one deck to another. At the time of the fall the ship was docked at a pier in the harbor of Baltimore. The plaintiff’s suit was based upon alleged negligence of the defendant as owner of the ship and upon alleged unseaworthiness of the vessel.

The case was tried before a jury. The trial judge directed a verdict for the defendant on the issue of negligence and submitted the case to the jury on the issue of unseaworthiness. The verdict was in favor of the defendant, judgment was entered thereon, and the plaintiff appeals from the judgment. The appeal seeks a review of some eighteen points and rulings, which may be stated relatively briefly as follows: First, two questions arising in connection with the exclusion of witnesses during the trial: one, whether the testimony of stevedore witnesses for the defendant should have been excluded for alleged violation of the exclusion of witnesses rule; the other, whether the trial judge erroneously stated to the jury that the action of one of the defendant’s counsel was proper in interviewing witnesses during the trial after the plaintiff’s testimony had been given, but before these witnesses had testified and while the exclusion rule was in force.

Second, the question whether or not the case should have been submitted to the jury on the issue of the defendant’s negligence. Third, two rulings excluding testimony sought to be elicited from the manager of the insurance carrier for Ryan Stevedoring Company as to (1) the unimportance to the insurer of the cause of the plaintiff’s injuries, and (2) business relations between the Stevedoring Company and the defendant. ⁴⁴¹ Fourth, two rulings relating to the plaintiff’s medical history given to two physicians. Fifth, a ruling on evidence as to the comparison of grease said to have been found at two different places. Sixth, a ruling (or two substantially identical rulings) on the plaintiff’s testimony relating to the presence of a drawing on a signed statement to the insurance carrier.

Seventh, the denial of the plaintiff’s motion for a mistrial based upon a statement with regard to payments of workmen’s compensation which the court permitted the defendant’s counsel to make in argument to the jury. Eighth, two rulings pertaining to the admission of hospital records. Ninth, five other objections to rulings on evidence,— two of which are based on uncertainty, two on evidence as to the absence of prior complaints relating to the area where the plaintiff fell, and one on an allegedly unresponsive answer to a question. Tenth, whether the trial judge should have commented upon counsel’s “arguing” with a witness.

Most of the facts are not in dispute. The plaintiff went aboard the “La Salle” as a member of a stevedoring “gang” employed by Ryan Stevedoring Company to unload cargo consigned to Baltimore in the No. 2 tween deck hold of the vessel. The hatches giving access to this hold are 37% feet long and 20 feet wide. At the main deck, shelter deck and tween deck the hatches are closed, when not in use, by hatch boards or covers, which fit into the coaming surrounding the hatch and are supported by steel beams spaced at intervals across the hatch.

When the hatch is to be opened, the boards are removed by stevedores, who use hooks which catch fittings at each end of the boards to lift them. The stevedores then pile the boards on either side of the hatch. The steel beams are mounted on wheels which run in grooves along the sides of the hatch coaming. These wheels are equipped with fittings for greasing and the bearings inside the wheels are greased.

While the plain ⁴⁴² tiff was helping to remove the hatch covers on the shelter deck, he slipped or lost his balance in some manner, and fell through the open hatch to the tween deck, a distance of about fifteen feet. The principal controversy on the facts is with regard to the cause of his fall. The plaintiff’s claim is that he slipped on some grease at a point where grease from the wheels on the beams supporting the hatch covers on the main deck dripped down to the shelter deck. The defendant denied that any grease was there.

First. Exclusion op Witnesses. Probably because of the anticipated conflict in testimony on this point the plaintiff asked, and the defendant agreed, that the witnesses should be excluded from the courtroom, except when actually called to testify, and the trial judge so ordered. The plaintiff and a witness called by him, another stevedore by the name of Harris, testified to the presence of grease and to the plaintiff’s having slipped on it.

The defendant’s witnesses were excluded during the giving of this testimony. After the conclusion of the plaintiff’s testimony and the adjournment of court for that day, one of the defendant’s counsel (Mr. Coleman) took the defendant’s witnesses over to his office for consultation before putting them on the stand when the trial resumed. During this conference the fact was stated by counsel that both the plaintiff and Harris had testified as above set forth. When the trial was resumed, it developed during the cross-examination of the defendant’s witness, Corman ■that the conference had been held and defendant’s counsel, Mr. Coleman, rose to make a statement.

Counsel for the plaintiff, Mr. Meyers, suggested that counsel approach the bench. Mr. Coleman stated that either at the bench or in open court was agreeable to him. A recess followed during which a conference was held in chambers between the judge and opposing counsel. It also developed during the trial that on the day before the trial opened counsel for the plaintiff had gotten in contact with Corman and another of the stevedore wit ⁴⁴³ nesses who later testified for the defendant and had questioned them about the presence of grease.

Toward the end of the trial, the following statements were made before the jury: “(The Court) There has been considerable discussion in examination and cross examination about counsel interviewing witnesses in the office. Of course, you know it is perfectly proper for a lawyer trying a case to interview witnesses before the trial and during the trial. There is nothing improper about that: In other words, it would be a rather poor lawyer who did not discuss with his witnesses the testimony he was going to give. It is perfectly proper and there is to be no undue circumstance about the counsel talking to witnesses.

(Mr. Meyers) It is also perfectly proper for me to ask a witness where he was yesterday and to obtain a truthful answer from him. (The Court) Yes, that is perfectly proper. Counsel have also asked me to tell you that it is perfectly proper for counsel about to try a case to talk to a hostile witness, witnesses on the other side. There is nothing improper about getting in touch with them.

(The Court) I said there was nothing improper in any lawyer interviewing a witness before the trial or during the trial.” The appellant claims that the conference in the office of counsel for the appellee and the disclosure of the testimony given by the plaintiff and by Harris constituted a violation of the exclusion of witnesses rule and that the testimony of the defendant’s witnesses who attended the conference should have been excluded. He further contends that the trial court should have granted his motion for a mistrial based upon the alleged violation of the rule. The appellee vigorously denies the charge of wrongdoing and asserts that there was no violation of the rule. It seems evident that the appellee’s counsel should have borne in mind the sequestration order and that he should have applied to the court for permission to disclose to the defendant’s witnesses the substance of the testimony ⁴⁴⁴ of the plaintiff’s witnesses before proceeding to do so.

His failure to seek such authorization appears to have been due to inattention or inadvertence and not to any deliberate intent to circumvent the rule. The comment of the trial court above quoted indicates that such permission would have been given, if it had been asked. The more important question is whether the rulings of the trial court were erroneous and prejudicial to the appellant. The practice of excluding witnesses is well established.

Parker v. State, 67 Md. 329 , 10 A. 219 ; Jones v. State, 185 Md. 481 , 45 A. 2d 350 ; Wigmore on Evidence, 3rd ed., Secs. 1837, et seq. The Parker and Jones cases appear to be the only cases in which this Court has been called upon to express itself with regard to the rule. In each case it is recognized that the problem is one committed to the discretion of the trial court, but the exercise of that discretion is reviewable in this Court. In the Parker case, the exclusion of the testimony of a witness for the defendant in a criminal case, where the witness had violated the rule without the connivance of the defendant, was held erroneous.

In the Jones case, the refusal of the defendants’ motion for the exclusion of witnesses in a criminal case was also held to be erroneous. Neither of these cases is on all fours with the present case. Of the out of State authorities, Capitol Cab Corporation v. Anderson, 85 N. Y. S. 2nd 767, affirmed 100 N. Y. S. 2nd 39, seems closely analogous on its facts. In that case the sequestration of witnesses rule had been invoked.

During a recess, defendant’s counsel spoke with defendant’s witnesses in the corridor. This came to the attention of tlje plaintiff’s counsel and he referred to it in his statements to the jury. The defendant’s counsel moved for a mistrial on the ground that the statements by the plaintiff’s counsel were improper in that they conveyed the impression that the conduct of defendant’s counsel was sinister and that the defendant’s witnesses were influenced to give untrue testimony. This motion ⁴⁴⁵ was held in abeyance, the case went to the jury and resulted in a verdict for the plaintiff.

The court thereafter granted the motion for a mistrial. A full review of other cases which have considered violations of the exclusion of witnesses rule and which have been carefully collected and cited by the appellant would not solve this case, because of differences on their facts. There are, indeed, several different views which have been taken by various courts as to the effect of the violation of the exclusion rule. See 58 Am.

Jur., Trial, Section 33. Wigmore, Evidence, 3rd ed., Sec. 1842, states that it is within the power of the trial court to refuse to admit the disobedient person to testify and that the power to exclude his testimony should be exercised if “there appears any reason to believe that the proposed testimony was important, that the witness had heard the other testimony, and that he wished to know its tenor.” Later in the same section, the author refers to a proviso attached by some courts, which is that the witness should not be disqualified unless the party connived in violating the rule. Whether or not the testimony of the defendant’s stevedore witnesses should have been excluded was a question within the discretion of the trial court, and in reviewing the exercise of that discretion we must, of course, consider the facts of this particular case. Wig-more’s text above quoted does not take into account (except perhaps inferentially) what seems to us an important and decisive fact in the instant case.

That fact is, that the defendant and its witnesses were informed before the trial began of the substance of the expected testimony of both the plaintiff and Harris. Well before the trial, counsel for the defendant had obtained a signed statement from Harris, and the plaintiff’s pretrial deposition had also been taken well in advance. It, therefore, is very improbable that the defendant’s witnesses could have been told of anything substantial and new on the basis of the testimony given in court ⁴⁴⁶ by Harris and the plaintiff, and the record does not support any opposite conclusion. This observation is as applicable to the relatively less important matters (such as whether Harris or someone else was working as the plaintiff’s partner) upon which their testimony conflicted with that of the defendant’s witnesses, as to the issue of the presence or absence of grease. .

Harris’ statement given in November, 1953, mentioned grease rather extensively, and the plaintiff’s declaration alleged the presence of a “slippery and greasy substance” on the deck. The plaintiff’s pretrial deposition is not in the record, and its contents consequently are not before us. Bearing these facts in mind, we are of the opinion that the interviewing of witnesses by counsel for the appellee did not result in any defeat or circumvention of the purpose of the sequestration rule; and also bearing in mind the statement of our predecessors in Parker v. State, supra, that “The ascertainment of the truth is the great end and object of all the proceedings in a judicial trial,” we think that the complete exclusion of the testimony of witnesses for a violation of the sequestration rule is not lightly to be imposed as a penalty upon even an offending party. Here, if there was any violation of the rule, its effect was not great, since, as we have already stated, nothing which was both new and substantial, was disclosed to the defendant’s witnesses.

To exclude their testimony in these circumstances would tend to suppress, rather than to develop, the truth. We hold that the trial judge properly exercised his discretion in refusing to strike out the testimony of these witnesses. The second branch of the appellant’s contentions based upon the exclusion of witnesses rule is that the comment of the court to the effect that there was nothing improper in the conduct of the defendant’s counsel in interviewing these witnesses deprived the plaintiff of the opportunity to challenge their credibility before the jury because of the violation of the sequestration rule. ⁴⁴⁷ The record indicates that this contention is unfounded. During a conference between court and counsel the following colloquy took place: “(Mr. Meyers) I suggest Your Honor, that I may in my argument to the Jury point out that I requested Your Honor to exclude all witnesses, and that was agreeable and granted by the Court and agreed to by counsel on the other side, and that my purpose in excluding of witnesses was to be able to cross examine them on facts about which they knew, and not about facts which they heard spoken in the Court Room or heard about being spoken in the Court Room.

I know that in some cases it is difficult to keep witnesses from hearing things just like the Court takes cognizance of the Jury reading a newspaper account of things, and when things like that happen appropriate steps are taken to prevent such happenings. In this particular case the witnesses came into the Court Room not equipped in their own ideas of what happened but also with the ideas of what they had heard from previous Court Room testimony, and so I should be permitted to present that so that the Jury can understand that a true exclusion of witnesses did not take place in this case and they can weigh the evidence that came in after being told of the previous testimony, weigh that evidence in the light that they were not excluded but that they heard the evidence almost the same