Houck v. DeBonis

Moore, J., delivered the opinion of the Court. Appellant, Mary O. Houck, was the driver of a 1968 Ford station wagon and an attached 1970 trailer, both owned by her late husband, when she sustained serious personal injuries in a single-car accident on Interstate Route 81 near Harrisonburg, Virginia in 1972. She thereafter filed suit individually and as administratrix of her husband’s estate * 1 in the Circuit Court for Harford County against the dealer from whom her husband had purchased the trailer and two corporations responsible for its manufacture. Breach of warranty and negligence were alleged.

Upon motion of the appellees, pursuant to Maryland Rule 501 (a), appellant’s personal injury claim was separated for purposes of trial from her claim as administratrix for damages to her husband’s property. At the close of a six-day trial, the court (Higinbothom, J.) granted the dealer’s motion for a directed verdict, grounded upon a written disclaimer of warranty. In the case against the manufacturers, the jury thereafter returned a defendants’ verdict. On this appeal, two separate issues are presented.

With respect to the manufacturers, it is argued that the court ⁸⁷ committed reversible error in admitting, as a declaration against interest, a statement made by the husband to the dealer within two weeks after the accident, which imputed negligence to appellant in her driving and towing. With respect to the dealer, appellant contends that the disclaimer of any warranty in the purchase agreement should have been held ineffective on the ground that it was not “conspicuous.” 2 We find no error and affirm both judgments. I In May 1971, Dwight Houck, appellant’s deceased husband, purchased for $3,500 a travel trailer from appellee, Nicholas DeBonis, the proprietor of King of the Road Auto Sales in Havre de Grace, Maryland. The vehicle was a “used” 1970 model, manufactured by the appellee, Prowler Industries of Maryland, Inc., a wholly-owned subsidiary of Fleetwood Enterprises, Inc. It had been purchased new in late August 1970 by a retired Army Colonel.

Mr. and Mrs. Houck took several motor trips with the trailer attached. They shared the driving on such occasions, and experienced no mechanical difficulties. Their adult children also made use of the vehicle and, similarly, did not encounter mechanical problems. Appellant and her husband, in July 1972, took the trailer in tow on a visit to appellant’s mother in western North Carolina, including excursions through the Smokey Mountains.

News of an illness in the family caused the Houcks to curtail their vacation and proceed north. It was on their return trip, on July 26, 1972' near 4 P.M., that the accident giving rise to this litigation occurred. Appellant testified that her husband was driving their station wagon, with the trailer attached, when they began their descent from Iron Mountain in Virginia. The road was steep and winding and, at the base of the mountain, ⁸⁸ appellant heard a “cracking noise,” suggesting to her that “maybe one of the stabilizer bars had come loose.” Mr. Houck stopped the car to investigate, but was unable to find anything wrong with the trailer.

The Houcks continued their trip on Interstate 81, a four-lane divided highway, and noticed soon thereafter that the trailer became extremely difficult to control when their speed exceeded forty miles per hour due to “swaying” or “fishtailing.” Three mechanics, at different service stations along the road, examined the trailer in attempts to discover the cause of fhe problem; none found anything in need of repair, but the unsteadiness persisted. Appellant, at some point, relieved her husband of the driving, and drove approximately fourteen miles on Interstate 81 prior to the accident. While traveling in the “slow lane” of the road (then having a speed limit of 70) at a rate “somewhere between forty and thirty-five or forty, maybe even a little more than that,” according to appellant’s own testimony, a tractor-trailer passed her at a high rate of speed, causing her to fishtail, and resulting in appellant’s losing control of her vehicle, which left the road, proceeded down an incline and came to rest against a pile of stones in an open field. Appellant sustained neck and other injuries; the trailer was severely damaged, its body and chassis having separated sometime during the accident.

The station wagon was also damaged. Appellant’s theory of negligence — with respect to which substantial expert testimony was adduced by both sides — was that the manufacturer of the trailer did not properly install the mounting bolts which fasten the trailer body to the chassis. II In the pretrial motion for separate trials of the appellant’s personal injury claim and claim as administratrix, counsel for the appellees indicated an intent to present testimony that, about two weeks after the accident, Mr. Houck made a statement to the appellee DeBonis concerning appellant’s ⁸⁹ driving and rate of speed at the time of the accident. Such remark, they alleged, met the requirements for admissibility of hearsay testimony, as a declaration against interest, at least insofar as the personal injury action was concerned.

As previously stated, the motion was granted. 3 At the trial of Mrs. Houck’s individual claim, appellees Fleetwood and Prowler called as a witness appellee Nicholas DeBonis, the trailer dealer. When asked whether he had had occasion to speak to Mr. Houck after the accident, DeBonis testified as follows: “. . . This was approximately within two weeks after the accident because the vehicles were still in Virginia at the time and Mr. Houck came into my place of business at that time and the question was, did I have insurance on his trailer and I asked him, for what reason, I said, Mr. Houck, this has been approximately fifteen months since I sold you the trailer. He says, well he had an accident and I asked him what occurred and he stated down in the State of Virginia in the vicinity of Harrisburg [sic], Virginia, on Interstate 81 that his wife wanted to drive and he let her drive and that that was her first time towing a trailer and he said that she was driving down Interstate 81 and a semi-tractor trailer passed her and I says, Mr. Houck, I know the rest of what happened, I can assume what happened and I says what speed was she going and he said she was going approximately sixty-five miles an hour and he said when the truck was passing her that the vehicle began to pull towards the left; that would be the trailer part would be pulling towards the left and the rear end of the car would be pulling to the left and that she swerved to the right, leaving the highway, going down through a ravine and through a fence.” (Emphasis added.) ⁹⁰ Mrs. Houck presents the following question on this appeal, urging us to answer it in the affirmative: “Was the testimony of the Appellee DeBonis concerning the alleged declaration of Mr. Houck against his interest improperly admitted and prejudicial to the Appellant’s case?” This issue causes us to reexamine the law of declarations against interest as exceptions to the hearsay rule, a subject about which little has been said in Maryland in recent years in civil cases.

Cf. Wilkins v. State, 11 Md. App. 113 , 273 A. 2d 236 (1971). Before determining whether the requirements for the exception are met, we look to the nature of hearsay itself. McCormick on Evidence § 246 (2d ed. 1972) provides the following definition: “Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. ” More simply stated, “[t]he rule against hearsay forbids the use of extra-judicial statements for the purpose of proving the truth of their content.” Strahorn, Extra-Legal Materials and the Law of Evidence, 15 Md.L.Rev. 330, 340 (1955).

Hearsay testimony is admissible in certain well-defined areas where circumstantial guarantees of trustworthiness are present. As stated by Professor Strahorn: “[A]ll of the hearsay exceptions present type situations both possessing unusually favorable conditions for perception, recollection, and narration, the normal defects of which make the conditioning devices necessary, and, as well, involving the absence of motivation calculated to lead to falsehood.” Id. at 343. ⁹¹ A hearsay exception for declarations against interest has traditionally been available. 4 The requirements have been variously enumerated, but generally include that the declarant be unavailable 5 at the time of trial, that the statement was made against his pecuniary or proprietary interests, that the declaration concerned a fact or event immediately cognizable by the declarant personally, and that no probable motive to falsify the facts existed when the statement was made. See, e.g., Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule, 58 Harv.L.Rev. 1 (1944). Two types of declarations against pecuniary interest have been recognized — those stating a liability of the declarant to another and those defeating a claim which the declarant has against another.

Id. at 29. Wigmore does not isolate as a separate requirement the absence of motive to falsify the facts. In his view, the assertion of a fact which is directly contrary to one’s interest is not likely to be the result of fabrication. 5 Wigmore on Evidence § 1457 (3d ed. 1940). Often, the learned Dean points out, it may not be immediately apparent that the declarant has uttered words adverse to his pecuniary affairs; the test for admissibility may still, however, be satisfied: “There are many facts which in their ultimate effect may be against proprietary or pecuniary interest, though in their immediate and narrow aspect there may be no such clear character.

Those facts, however, may nevertheless be facts so decidedly against interest that no one would be inclined falsely to concede their existence. If so, on the general principle ... they should therefore be ⁹² admitted. No more precise test can well be formulated, except in the suggestion that the interest injured or the burden imposed by the fact stated should be one so palpable and positive that it would naturally have been present in the declarant’s mind.” Id. § 1461. “Independent evidence,” Wigmore further states, may be used to show that the matter stated was against the declarant’s interest. Id. § 1468.

Maryland law accords recognition to declarations against interest as exceptions to the hearsay rule, and differs in no substantial respect from the general principles discussed above. The reported cases in Maryland, however, are few. The leading case is Western Maryland Railroad Co. v. Manro, 32 Md. 280 (1870), and the fact that it has not been cited in any' subsequent decision is indicative of the infrequency with which this issue has arisen on appeal in Maryland. In Manro , an action was brought by a railroad company to recover on a subscription to its capital stock.

The plaintiff sought to introduce, through a third party, the statement of a deceased company official that the defendant had paid him one dollar upon each share of stock at the time of his subscription. This evidence was essential to the plaintiff’s cause of action under then-existing law. The court, quite understandably, rejected the statement as hearsay, finding no merit in the plaintiff’s contention that it was made against the pecuniary interests of the official. Surprisingly, the only explication by a Maryland court of the requirements for admissibility of a declaration against interest is found in a case of such vintage: “The general rule in regard to the declarations of a person, since deceased, t 6 l ... is this [:] to render them admissible against third persons, ‘it must appear that the declarant is deceased; that he possessed competent knowledge of the facts, or that ⁹³ it was his duty to know them; and that the declarations were at variance with his interest.’ ” 32 Md. at 282 -283 [quoting 1 Greenl.

Ev. sec. 147], Later cases, although seemingly applying the same rule as to declarations against interest, award only perfunctory analysis to the issue. See Buck v. Brady, 110 Md. 568 , 73 A. 277 (1909); Rosenstock v. Rosenstock, 151 Md. 253 , 134 A. 143 (1926). 7 See also Rosman v. Travelers’ Insurance Co., 127 Md. 689 , 96 A. 875 (1916) and Stiegler v. Eureka Life Insurance Co., 146 Md. 629 , 127 A. 397 (1925), involving suits by beneficiaries to recover the proceeds under life insurance policies wherein false statements made by the insured were held admissible against the beneficiaries. The clearest example of a declaration against interest is a statement by the declarant that he is indebted to another, and, according to McCormick, the hearsay exception appears to have evolved from this type of case. McCormick on Evidence, supra, § 277.

The application of the rule has, however, been significantly broadened: “[T]he American cases have properly extended the field of declarations against interest to include acknowledgement of facts which would give rise to a liability for unliquidated damages for tort or seemingly for breach of contract. A corresponding extension to embrace statements of facts which would constitute a defense to a claim for damages which the declarant would otherwise have, has been recognized in this country.” Id. (Emphasis added.) 8 ⁹⁴ In applying the law to the specific facts of this case, we note preliminarily that the evidence at trial was conflicting as to the speed at which Mrs. Houck was traveling when the accident occurred, leaving that question a matter for determination by the jury. Appellant herself testified, as previously noted, that she believed her speed to be between 35 and