Green v. Otenasek

Levine, J., delivered the opinion of the Court. This appeal arises out of a rather unique case tried before a jury presided over by Judge Rasin in the Baltimore City Court. One of the appellants, Vernon D. Green (Green), his wife, Cleda M. Green, being the other, was injured as a passenger in an automobile collision on January 26, 1965, while he was on duty as a sergeant on the Vice Squad of the Baltimore City Police Department. Claiming that he sustained substantial injuries, they filed ¹¹ suit in the Baltimore City Court on March 30, 1966, through their attorney, David J. Preller, Esq.

(Preller), against the two drivers of the respective vehicles involved in the collision, Smith and Toth. 1 Toth’s defense was undertaken by his insurance carrier, Hartford Accident Insurance Company, through John F. King, Esq. (King). In the course of being treated for his injuries, Green came under the care of appellee (Otenasek) who is a physician specializing in neurological surgery. Ultimately, the case against the drivers reached the point of being ready for trial.

To prepare for that eventuality, Preller arranged to confer with Otenasek at the latter’s office in October, 1968. During that conference, which, for the most part, was apparently harmonious, there was a thorough discussion of Green’s condition as reflected by the several medical reports which had previously been furnished Preller by Otenasek. The meeting, however, terminated on a less conciliatory note when Otenasek announced that he would not attend the trial of the case due to a long-standing policy against appearing in court. According to Preller, Otenasek stated he would not appear even if served with a witness subpoena.

Otenasek claimed that he informed Preller of his intention not to testify because counsel allegedly had promised that if the doctor conferred with him, a trial appearance would be unnecessary. Following that meeting, there ensued an exchange of correspondence between them which began with Preller’s payment of a fee for the consultation, and which was punctuated by Preller’s entreaties and Otenasek’s reasons for refusing. Throughout the correspondence, Preller stressed the importance of Otenasek’s testimony to appellant. Preller also advised appellee by his letter of February 27, 1969 that the case was set for trial on ¹² April 30, and offered to accommodate the doctor’s schedule and to pay him a witness fee.

Appellee’s reply of March 6 bears repeating here: “I think I have gone very far out of my way to give you all the information in the case of Mr. Vernon D. Green. In my interview with you I told you that I would not appear in court and my letter of January 6, 1969, confirms this. “You can, of course, ‘force’ me to appear but since this is against my policy I would have to declare to the Court that I am appearing under coercion and therefore, subject to the prejudices and vagaries of human psychology. I think, therefore, that it would be to your interest not to call me into Court.” In anticipation of the April 30 trial date, Preller issued a witness subpoena for appellee which a deputy sheriff tried valiantly to serve several times. When those efforts proved to be futile, the sheriff, having been “given a complete run around,” left the subpoena with an office employee.

Return was made with the notation “SD” which the parties stipulated was the sheriff’s indication that the witness had been summoned. However, the case was not reached for trial on April 30 due to a previously-granted continuance occasioned by illness of counsel. Not long thereafter, the suit was settled for the total sum of $52,500, 2 without a trial, and with no further effort made to serve appellee with a subpoena for a new date. According to Otenasek, Preller wrote to him on July 31st informing him of the settlement with the suggestion that the case was being settled for half its value due to appellee’s alleged refusal to “attend several trial dates.” Thereafter, the Greens sued Otenasek for damages in tort alleging that as a result of appellee’s refusal to tes ¹³ tify as a witness for them in the case against Smith and Toth, they were compelled to settle the case out of court “for a fraction of its actual monetary value, and suffered a substantial loss.” During the trial, appellants called as one of their witnesses, Dr. Carl F. Christ, Professor of Economics at the Johns Hopkins University, for the purpose of proving Green’s economic loss occasioned by his automobile injuries and his consequential retirement from the police force. 3 After a rather extensive proffer of what Dr. Christ’s testimony would be, the court ruled that the assumptions on which the proposed testimony was to be grounded were too speculative and, in effect, disallowed his entire testimony.

At the end of appellants’ case, the court reserved appellee’s motion for a directed verdict, but denied it at the conclusion of the entire case. The case was submitted to the jury on the following special issues: “1. Do you find that the sum of $52,500.00 was a fair and reasonable settlement for the injuries, losses and damages sustained by Mr. and Mrs. Green as a result of the accident of January 26, 1965? “2. If you find the answer to Issue No. 1 is ‘NO,’ then what amount do you find would have been fair and reasonable compensation for the injuries, losses and damages sustained by Mr. and Mrs. Green as a result of the accident of January 26, 1965? “3.

Was Dr. Frank Otenasek’s conduct with respect to offering medical evidence in the prior case the direct and proximate cause of the settlement of that case?” The jury answered the first issue “yes,” thereby making consideration of the remaining issues unnecessary. From the judgment on that verdict, this appeal is taken. The sole question presented by appellants is whether ¹⁴ the trial judge abused his discretion in refusing to admit the testimony regarding economic loss. We find it unnecessary to decide the point raised by appellants as any error in the evidentiary ruling, if there was error, was not prejudicial.

We reach this conclusion since we are of the view that Judge Rasin should have granted appellee’s motion for directed verdict made at the end of the entire case. In so concluding, we have not been unmindful of the general rule by which the sufficiency of the evidence is to be tested when this Court is reviewing a motion for a directed verdict as being, that we must resolve all conflicts in the evidence in favor of appellants and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support appellants’ right to recover. Lloyd v. Bowles, 260 Md. 568 , 273 A. 2d 193 (1971) ; Smith v. Bernfeld, 226 Md. 400, 405 , 174 A. 2d 53 (1961) ; Zeamer v. Reeves, 225 Md. 526, 530 , 171 A. 2d 488 (1961) ; Campbell v. Jenifer, 222 Md. 106, 110 , 159 A. 2d 353 (1960). Appellee’s motion for a directed verdict, while resting on a number of overlapping grounds, raised the following points which we now regard as determinative of this appeal.

They are: 1. That the appellee was not served with a subpoena to appear in any court for a trial which actually took place, and there was no evidence that appellee refused or failed to respond to a lawful summons, subpoena or order of court for his attendance at trial. 2. That appellants elected their remedy by voluntarily settling their case for personal injuries. 3. That appellants failed to prove that appellee would not have appeared and that he would not have testified honestly under oath with regard to his medical findings and opinions if served with a subpoena for a trial which actually occurred.

Any consideration of the issues presented here must begin with a recognition of Maryland Code (1957, 1969 ¹⁵ Repl. Vol.), Article 35, § 14, in effect at all times material to this case: 4 “Whenever any witness shall be summoned to attend any of the courts of this State and shall, without sufficient excuse, neglect to appear, he may be attached and fined by the court not exceeding fifty dollars, and shall be liable to answer the party for whom he shall be summoned in an action upon the case for the damage sustained for want of his appearance to testify according to such summons.” (emphasis added) Similar statutes are found in most other states. See 8 Wigmore, Evidence, § 2195f (McNaughton Rev. 1961). The difficulty which becomes immediately apparent here stems from the fact that this suit has been brought against a witness who was not served with a summons, and thus does not come within the ambit of the statute.

For this proposition, there is, to say the least, a lack of case authority as we suggested at the outset of this opinion. Indeed, no American case dealing with the precise factual situation present here has been brought to our attention, nor have we found any. Appellee suggests in his brief that in the trial court at oral argument on the demurrer and motion for summary judgment filed by appellee, in both of which the issue we deal with here was raised, appellants relied upon two cases for support of their position, Hammonds v. Aetna Casualty & Surety Company, 243 F. Supp. 793 (N.D. Ohio 1965) and Alexander v. Knight, 197 Pa. Super. 79 , 177 A. 2d 142 (1962).

We agree that neither of these cases is apposite and what might be quoted in each case as favorable to appellants hardly rises to the level of dicta. For example, in Hammonds, supra, the action was brought by a personal injury victim against an insurance company for allegedly persuading the plaintiff’s treating physician, by the use of a false pretext, to di ¹⁶ vulge confidential information gained through the physician-patient relationship. That the court denied summary judgment for the carrier in the face of such an allegation should hardly cause a tremor and understandably, in the context of that record, the court would be moved to say: “It cannot be