Houston v. LLOYD'S CONSUMER ACCEPTANCE CORPORATION

McWilliams, J., delivered the opinion of the Court. Availing themselves of the provisions of Maryland Rule 826 g 1 the parties hereto signed and filed with the clerk of the lower court the following: ¹² “Lloyd’s Consumer Acceptance Corporation, Plaintiff, and Reed Houston and Catherine Houston, Defendants stipulate and agree under the provisions of Rule 826 g that the following is a statement of the case in lieu of pleadings and evidence: The Plaintiff brought its action in the Circuit Court for Baltimore County in assumpsit on July 14, 1964, and the Defendants filed a General Issue Plea and a Special Plea to the August Rule Day. Thereafter a Demurrer to the First Special Plea and Demand for Particulars to the Second Plea were filed. “The mesne proceedings between the filing of the Plea and the Motion of the Defendants to place the cause on the jury trial docket filed on the 17th day of February, 1965, are not germane to the appeal. “On February 17, 1965, the Defendants filed a motion to transfer the cause from the non-jury trial docket to the jury trial docket and set forth as their reasons the fact that neither of the parties to the cause had waived their respective rights to a jury trial and that a waiver of both parties is required under the Maryland Constitution and the parties are entitled to a trial by jury without formal application. “The Plaintiff responded to the Motion and stated as the grounds for their resistance thereto Rule 8 of the Circuit Court for Baltimore County the pertinent provisions of which provide: “ ‘ (1) All civil cases standing for trial in the Circuit Court for Baltimore County shall be tried before the Court without a jury unless an election in writing, for a trial by jury separate and distinct from the pleadings, be filed, in person or by attorney, as hereinafter provided. “ ‘(2) As to plaintiffs, such election shall be made by the plaintiffs, or any of them, not later than fif ¹³ teen days after the filing of the declaration. In all cases where a plaintiff or plaintiffs shall be brought in by amendment, any such new plaintiff shall so elect within five days after being made a party. “‘(3) As to the defendants, such election shall be made by the defendants, or any of them, at or before the time of first filing a plea, but in no event, after the time allowed by law or Rules of Court to plead.’ * * # “ ‘(7) So soon as it is ascertained that a cause will not be tried before a jury, the clerk shall note that fact in red on the general trial docket, and when such case has been placed on the special trial docket, it shall be placed under a separate heading entitled “Non Jury Cases”.’ “The Court below (John Grason Turnbull, J.) on February 17, 1965, denied the Motion and it is from the Order so doing that this appeal is taken. “The sole question presented by this appeal is ‘Does a rule of a Circuit Court, at law, requiring an affirmative written election for a jury trial violate Article XV, section 6 of the Maryland Constitution ?’ ” Judge Turnbull did not state the grounds for his decision nor does it appear that either party filed a motion requiring him to do so.

Maryland Rule 18 c. We have observed on a number of occasions 2 that it might be helpful for us to know liow or why the trial court reached his (or her) decision. Counsel ought not to be timid in making use of this rule nor should trial judges be annoyed with counsel for doing so, for, it will be recalled, the rule [18 c] itself is a relaxation of the former practice which ¹⁴ required the trial judges, 3 in equity cases, to file an opinion in every case in which there was oral or written argument. Code Art. 16, § 209 (1951).

We are satisfied it would be desirable, in most cases, for such a motion to be filed whenever it becomes clear to counsel that an appeal to this Court will be perfected. However desirable it may have been in this case and whatever may have been Judge Turnbull’s reasons, we think his decision must be affirmed. It is well settled that the right to a jury trial may be subjected to reasonable regulation; indeed, it is generally acknowledged that it can, for all practical purposes, become meaningless to the individual and burdensome to the state unless the exercise of it is regulated to some extent. Virtually all of the busy courts in this country enjoy the benefits of statutes or rules similar to the rule here under attack and seldom has the validity of those statutes or rules been successfully challenged. 4 Since appellants contend there is an- infringement of the constitutional guarantee that the right to a jury trial “shall be in ¹⁵ violably preserved” 5 it becomes necessary to examine the decisions of this Court cited by them in support of this position.

The earliest case cited is Wright v. Hammer, 5 Md. 370 (1854). We are, however, unable to discern why it was cited. The Court there w 7 as concerned only with the right of removal under the Constitution of 1851 and the Court’s opinion is barren of any mention of jury trials. Precisely the same thing is true in respect of Griffin v. Leslie, 20 Md. 15 (1863), the next case cited.

Next in chronological order is Gambrill v. Parker, 31 Md. 1 (1869), which appellants contend should be persuasive. The appeal was dismissed because the determination of the court below was not final, but this Court, speaking through Judge Stewart, took occasion “to express, briefly, * * * [their] views” in regard to the question presented. Appellants quote him, as follows: “In cases where a jury trial is demanded, and to which the party has a right, and there is no agreement to submit the case to the court, such case must, of course, be disposed of at a jury term.” Id at 6. The above quotation loses much of its significance, however, at least as far as this case is concerned, if there is added, as we now do, the very next paragraph of Judge Stewart’s opinion: “But the court, not knowing, in advance, what may be the determination of parties having cases, entitling them to a jury, as [to] the forum before which they will try them, may make rules regulating the matter; or, in the absence of special rules, may apply their general rules, as to the order of the business of the court, and the issuing of process to any of the terms, mthout affecting the right of parties t'o a jury trial.” Ibid.

(Emphasis supplied.) Knickerbocker Ins. Co. v. Hoeske, 32 Md. 317 (1870) is appellants’ next offering. In that case, plaintiff, having obtained ¹⁶ a judgment by default, sought to have his damages assessed before the court, as provided by sec. 9 of the Act of 1864. The court refused defendant’s application for a jury trial.

Chief Judge Bartol, speaking for the Court, stated: “3rd. We think the court below erred in refusing the application of the defendant for ‘a trial by jury of the question of the amount of damages to be assessed to the plaintiff.’ “The Act of 1864, sec. 9, provides that ‘when any judgment by default shall be entered under the preceding sections, the court may assess the damages on proof thereof without empanelling a jury.’ This section must be construed in subordination to the constitutional provision, Art. 15, sec. 6, which declares that ‘the right of trial by jury of all issues of fact in civil proceedings, in the several courts of law in this State, where the amount in controversy exceeds the sum of five dollars, shall be inviolably preserved.’ “In the face of this provision, the Act of 1864, sec. 9, cannot be construed so as to deprive the defendant in this case, of the right of having the damages ascertained by a jury. In a proceeding under this Act, where a defendant has not appeared in court and is in default; or having appeared, waives or fails to ask to have this question referred to a jury, the court is empowered to assess the damages.” Id at 326. (Emphasis supplied.) Desche v. Gies, 56 Md. 135 (1881) is an appeal from the Circuit Court of Baltimore County, upon which appellants place much greater reliance than we think is justified.

It does appear that Chief Judge Bartol, for the Court, brushed aside the appellants’ only contention (that a suggestion and affidavit of removal was fatally defective) and, said: “We consider it unnecessary to decide whether this was a valid' objection to the suggestion [of removal], or whether the same was sufficient in form; because it appears to us there is, apart from this question, a fatal objection to the judgment rendered by the Circuit Court. ¹⁷ “It does not appear from the record that there was any consent or agreement by the parties to submit the cause to the court for determination without a jury, as authorized by the Constitution, Art. 4, sec. 8. “Without such consent or agreement, it was not competent for the court to proceed to the trial of the case, and to render judgment therein.” Id at 137. We must agree with Judge Bartol that “without such consent and agreement” a court cannot render judgment. However, he did not say, and we have never said, that “such consent and agreement” cannot be reached in a variety of ways and particularly by way of a rule of court such as the one now under consideration which, it should be observed, was not then in force in Baltimore County. The following quotation from Lanahan v. Heaver, 77 Md. 605, 26 Atl. 866 (1893), is offered next by the appellants: “But we place our conclusion on what we think is the plain meaning of the provision of our own constitution upon this subject—namely, that the parties to a civil cause must agree thereto before the aidI of a jury can be dispensed with. “We believe that universal practice of this state is in accord with this construction, for it has never been suggested that either party in a civil case can, without consent of the other, avoid a jury trial.” Id at 609.

(Emphasis supplied by appellants.) Apart from the fact that the quotation is somewhat out of context we do not see how it helps appellants’ cause. The Court did not decide the means by which the agreement or consent might be obtained. Indeed, the only question before the Court, to use the words of Judge Fowler, who spoke for the Court, was: “The Constitution, Art. 4, sec. 8, provides that ‘the parties to any cause may submit the same to the court for determination without the aid of a jury.’ It is apparent, therefore, that under the familiar provision of our Constitution a jury may be dispensed with by ¹⁸ agreement of the parties in civil cases, and the only question before us is whether this agreement is binding upon both parties to it, and, if so, how long.” Id at 608. (Emphasis supplied.) On 7 November 1893,® the voters ratified an amendment to the Constitution (Art. IV, § 39) which provides, in part, as follows: “* * * [A]nd the General Assembly may provide by laws, or the Supreme Bench by its rules, for requiring causes in any of the Courts of Baltimore City to be tried before the Court without a jury, unless the litigants or some one of them shall within such reasonable time or times as may be prescribed, elect to have their causes tried before a jury. * * *” The ensuing rule (now known as Rule 545, Rules of Supreme Bench of Baltimore City, effective April 1, 1961) is essentially the same as the rule now under assault by appellants.

When the county rule 6 7 was first adopted we do not know, but very likely it was copied, almost verbatim, from the city rule which came under the consideration of this Court, somewhat obliquely it is true, for the first time in City Pass. Ry. Co. v. Nugent, 86 Md. 349 , 38 Atl. 779 (1897), which is the next case cited by appellants. Although the trial court was reversed only because the plaintiff’s prayer for a jury trial did not appear on a “writing separate and distinct from the pleadings,” we think Chief Judge McSherry’s comment has both juridical and historical relevance: “The first exception brings up a new question of practice.

By sec. 6, Art. 15 of the Constitution, a trial by jury of all issues of fact is guaranteed to every litigant when the sum in controversy exceeds five dollars, though it is competent, under sec. 8, Art. 4, for the parties to a proceeding to waive that right and to sub ¹⁹ mit the cause to the Court for determination without the aid of a jury. It was found in actual practice that these provisions resulted in congesting the dockets of the common law Courts in the city of Baltimore, and accordingly an amendment of the organic law was proposed by the General Assembly during the session of 1892. This amendment was subsequently adopted by the people. * * * This amendment, it will be seen, requires the causes therein referred to, to be tried by the Court unless an election to have a jury trial is. made; and produces precisely the converse of the condition which prevailed prior to its adoption. Acting under the authority thus conferred upon it, the Supreme Bench adopted a series of rules to put the amendment into effect. * * *” Id at 360-61.

(Emphasis supplied.) Appellants indicate that the language above italicized clinches, their theory of the case. They offer as sufficient proof of the major premise of their syllogism the simple fact that the proponents of the city rule sought and obtained the constitutional amendment.