Kelly v. Huber Baking Co.

³²⁴ Onrutt, J., delivered the opinion, of the Court. On the 11th day of November, 1920, at about two o’clock in the afternoon, Oswald C. Kelly and Evelyn S. Kelly, his wife, who were on their way from their home at Otega, New York, to Florida, were travelling in a seven-passenger automobile driven by Mr. Kelly, over the state road leading from Newark, Delaware, to Elkton, Maryland, and had reached a point in Maryland about two miles north of Elkton, when they met a truck owned by the Huber Baking Company and driven by one of its employees, which collided with the automobile with sufficient force to overturn it, and after the collision Mrs. Kelly was found in an unconscious condition pinned beneath the automobile. She was at once taken to a hospital in Elkton, where upon an examination it was discovered that she had sustained severe and painful injuries, from which she claims she has never fully recovered. She claimed that the accident resulted from the negligence of the driver of the truck, and asserted a claim against the Huber Baking Company, his employer, for compensation for the injuries she had suffered.

That company denied any liability for the accident, and thereafter, on March 31st, 1922, she filed in the Circuit Court for Cecil County a declaration against it in which she charged that “the automobile in which the plaintiff was riding was run into and struck by an automobile truck of the defendant, due to the negligent handling, running and operating by said defendant, its servants and agents of said truck; that by reason thereof the automobile in which .the plaintiff was being driven was turned over, throwing the plaintiff on and'against the stone highway with great force, whereby the plaintiff’s skull was fractured, her body, ■arms and legs injured and bruised, said injuries have caused great suffering and pain, and the plaintiff is seriously and permanently injured.” 'The- defendant filed the general issue plea to that declaration, .and the case was tried before a jury in the Circuit Court for Caroline County, to which it had been removed, and on April 15th, 1922, the jury in the case returned a verdict for the defendant, and on the same day the plaintiff filed a motion for a new trial. On July 9th, 1923, ³²⁵ that motion was overruled and final judgment entered on the verdict, and from that judgment this appeal was taken. ■The record contains seven exceptions. The first five relate to rulings upon questions of evidence, the sixth to the court’s rulings on the prayers, and the seventh to its action in excluding at the hearing of the motion for a new trial an affidavit of a member of the jury before whom the case, "was tried, tending- to impeach his verdict. Before taking up those exceptions, however, it will be necessary to consider a motion to- dismiss the appeal made in this (’onrt by the appellee.

The ground for the motion is that the exceptions were not signed within the time limited by chapter 463, section 49E, Acts 1894, a Public Local Law of Caroline County, which requires all bills of exceptions in any cause pending in the circuit court for that county to be signed within thirty days from the rendition of the verdict of the jury or the finding of the court upon issues of fact, except where the time has been previously extended by order of court, or where the parties agree that they be signed. Unless the appellee has in some way waived its right to rely upon these provisions of that statute, the motion must prevail, for the record conclusively shows that the exceptions were not signed within thirty days from the day of the verdict, and that the court did not within that period extend the time for signing them, and the question finally comes to this: Did the appellee waive its right to object to the consideration of the exceptions in this court on the ground that they were not signed in accordance with the terms of the statute referred to ? The facts to be considered in connection with that question are not disputed, and are as follows: On Tune 19th, 1922, long after the period of thirty days from the verdict in this case had expired, the court, upon the petition of the appellant, extended the time for signing exceptions to September 1st, 1922. On Tuly 31st of that year the first six exceptions were signed, and the seventh exception, relating to the court’s ruling in excluding the affidavit of the juror previously referred to at the hearing of the motion for a new trial, was ³²⁶ signed on July 25th, 1923, within thirty days from that hearing, which occurred on July 9th, 1923.

That exception contains the following statement of what transpired at the hearing of the motion for a new trial: “At the hearing the plaintiff desired to discuss for the purposes of a new trial the court’s rulings as embodied in the first, second, third, fourth, fifth and sixth' exceptions in the bills of exceptions. Counsel for the defendants, however, objected to the correctness of the rulings upon which these exceptions were based being discussed by counsel or considered by the court unless these exceptions were waived for the purpose of the Court of Appeals. After argument the court decided that if counsel for the plaintiff desired to discuss these exceptions they would have to be waived; it was then agreed that the third and fifth exceptions should be waived for the purpose of the Court of Appeals, and the first, second, fourth and sixth exceptions be preserved for the purpose of the Court of Appeals, in accordance with which agreement and ruling by the court confirming the agreement the correctness of the rulings embodied in' the third and fifth excepitons were discussed by counsel and considered by the court and none others.” After the case reached this Court the jiidges who presided at the trial below filed in-it a certificate, in which they stated “That the language used in the introduction or preamble to the plaintiff’s seventh hill of exceptions, near the bottom of page 163 of the record filed in said case, was understood by us to mean the same as if it had been written' as follows: ‘The counsel for the plaintiff then elected that the third and fifth exceptions should be waived for the purpose of the Court of Appeals, and the first, second, fourth and sixth exceptions be preserved for the Court of Appeals, in accordance with which election and ruling by the court confirming the election the correctness of the rulings embodied in the third and fifth exceptions were discussed by counsel and considered by the court and none others.’ We do further certify that the counsel for ³²⁷ the defendant in no manner entered into or particiqiated in the election aforesaid further than to insist upon the enforcement of the rule requiring such election, and entered into no agreement in relation thereto, the matter being wholly at the discretion and election of the counsel for the plaintiff.” From these statements of the trial court it is obvious that at the hearing of the motion for a now trial, one of the ground;! of which was that the court had erred in its “ruling or instructions,” counsel for the appellee moved the court to require the appellant, to elect whether she would stand upon her exceptions at the hearing or whether she would try them in this Court, and that as a result of its action the trial court required the appellant to elect whether she would have her exceptions heard by the trial court or bv this Court, and that because of that ruling for which the appellee had asked she elected to have them heard by this Court instead of by the trial court. .In other words, having successfully objected to having the exceptions reviewed by the trial court upon the implied assurance that they could be heard by this Court, and having gotten the full benefit of its action there, the appellee now objects to the consideration of the exceptions in this Court on the ground that they were not taken in time.- While ii may have been inadvertent and unconscious, nevertheless such conduct is not consistent with those principles of equity and fair dealing* which should characterize transactions in courts of justice, and cannot be approved by this Court. At the time it objected to the consideration of these exceptions by the trial court, the appellee knew, or by the exercise of ordinary diligence should have known, that the exceptions were not signed within the time required by the statute, and if it had intended to rely upon that objection in this Court, it should have' so informed the trial court, when it. objected to the consideration of the exceptions as grounds for a new trial, for certainly that' court would not have required the appellant to elect whether she would try her exceptions before it on that motion, or in this Court, had it been advised ³²⁸ that they were invalid, and that appellee would object to their consideration in this Court for that reason.

Eor these reasons, in our opinion, the appellee, by its counsel, waived its right to object to the consideration of the first, second, fourth and sixth exceptions in this Court, and the motion to dismiss the appeal must be overruled. Mitchell v. Slye, 131 Md. 88 ; Williams v. United States Fid. Co., 105 Md. 503 ; Thomas v. Ford, 63 Md. 346 . Of the seven exceptions contained in the record six may be disposed of with brief comment.

The third and fifth were expressly waived in the lower court. The first and second relate to the admission of the testimony of two witnesses who had made an actual physical examination of the ■wrecked automobile as to the condition of the steering gear. There was testimony in the case that, when they examined it, the machine was in the same condition in which the accident left it. The defendant’s theory of the accident was that it was occasioned by the erratic course of the plaintiff’s automobile due to the condition of its steering gear.

The evidence was, therefore, relevant and properly admitted. The fourth exception, because of its obscure and contradictory reference to the court’s ruling, presents no question which we can review, but it is difficult to conceive of an answer with fewer possibilities for harm than that to which it relates. At the hearing of the motion for a new trial the plaintiff offered in evidence the affidavit of James E. Todd, one of the jurors who tried the case, to the effect that during the trial he had been approached by a certain Davis, the brother-in-law of one of the attorneys for the defendant, who told him that there was “not much to” George R. Eabian, the principal witness for the plaintiff, and that the foreman of the jury stated to them when they retired to' make up their verdict that he had heard that the witness was a “crook.” In that affidavit Todd attempted to impeach his own verdict. For that purpose it was clearly inadmissible.

Brinsfield v. Howeth, 110 Md. 530 . And while the facts which it embodies, if true, would be sufficient to warrant appro ³²⁹ priate proceedings to punish the persons who attempted to discredit the administration of justice by improperly influencing the verdict of the jury (20 C. J. 495, etc.), under no circumstances could the affidavit be considered for the purpose for which it was offered at the hearing of the motion for a new trial. The sixth and only remaining exception relates to the ruling of the trial court on the prayers. The defendant offered seven prayers, of which the court granted the first, second, third, fourth and fifth.

The first and third prayers state general principles of law applicable to the facts of the case in a form which has been repeatedly approved by tills Court, and were properly granted. There was, however, in our judgment, error in granting the defendant’s second, fourth and fifth prayers. In order to correctly estimate the significance and effect of these instructions it will be necessary to refer briefly to so much of the evidence in the case as is material to the plaintiff’s right to recover. Oswald C. Kelly, who was driving the automobile, testified that he had just driven it around a curve in the road when he saw the truck, which at that time was “kinda hogging the road,” and to quote from his testimony: “I didn’t like the looks of him very much when I saw him coming up the road, and I slowed down and pulled two wheels, off on the dirt; off of the macadam over on the dirt.

He didn’t seem to turn out any and I pulled further over. As I got within about 2.00 feet of him E was over as far as I could travel in the ditch, and I had room then, I thought, to get past. * * * I was over as far as I could drive in the ditch with safety to the telephone pole. * * * All at once I noticed him come to the side of the ear like that (illustrating). The next, thing I knew the car turned around in the road; turned over, and here we we re. * * * ft struck the car where I sa.t on the front end of the running board. * * * What part of the truck struck your car? A. The wheel was the only part that could strike it.

Q. Which wheel ? A. The left front wheel. * * When the front wheel struck my car it took the run ³³⁰ ning board and rear fender; straightened out- the rear fender; took the running board and side pan and brackets, and took the rear axle behind the car. Some part of the truck went under the car and jammed the muffler. After the car turned over the truck went under and jammed the muffler, and the car swung around in the road and turned on its right side.' Q. What became of the truck?

A. The truck continued the course it was going to a stone pile about forty feet from where he struck me.” George R. Fabian, a salesman, was driving a Ford coupe behind the truck at the time of the accident. He testified he had not passed it because he did not have room, and that “it was talcing up too much of the road. This truck was not running straight. I was afraid to take a chance and as long as I had but a short distance to go I thought I would stay behind rather than take a chance.

Q. AVhen you say it was not running straight-, what do you mean? A. AAell, kinda wabbling as if it had a bad steering gear.” The witness further testified that when he saw Kelly’s automobile come around the curve he anticipated from the position of the track in the road that something might happen and he pulled over to the left so that he could see better, and further testifying he said: “A. I saw the automobile coming around the bend, I imagine he was running twenty or twenty-five miles an hour. He couldn’t go very fast because there is a very sharp turn there; he couldn’t go faster than that. T believe Kelly would have passed him all right, but as he got opposite him he ran right, smack into him.

Q. AAho did ? A. The truck, and then he ran about forty feet into a stone pile and the wheel broke off.” He also said that the truck was in the middle of the road and travelling at about twenty or twenty-five miles an hour. L. H. Rothwell, an employee of the State Roads Commission, testified that the roadway at the point where the accident happened is twenty-four feet wide,, of which there is a cement portion “fourteen feet wide, and on either side of that a dirt “shoulder” five feet wide. ³³¹ Paul Miller and Stephen Kline arrived on a truck shortly after the accident, and they testified as to the relative locations of the automobile and the truck when they arrived, corroborating Kelly and Fabian. William O. I Hudson, on behalf of the defendant, gave this description of the accident: “I was driving on the Elkton Pike going towards Newark in a Pierce Arrow truck between one and one-thirtv in the afternoon.

The truck was empty save; a few bread boxes, as I served the route and was returning home. When I got about half way, I would say, between the little church and the school house, I noticed a touring car on the ‘road coming in the opposite direction. This touring car was coming towards Elkton and L was going towards Newark and as I got to the school house this touring car met me at the school house. 1 was going down on the right-hand side of the pike, and the touring car was coming towards Elkton, and just at this point the touring car ran into the front ■wheel of my truck and took the rim, as we term it, off of the truck wheel and turned the truck crosswise of the road, taking the steering gear wheel out of niv hand completely, and for a moment paralyzing my hand so to speak. 1 had no control of the machine. She turned crosswise of the road, as the wheel was broken down.

I didn’t have any wheel to control it, but as soon as possible, which was only an instance or two I reached down and grabbed the emergency brake and stopped the machine, which ran to the left side of the center of the road at a stone pile near a. telephone. She didn’t touch the telephone pole or any part of it, but stopped at the stone pile. * * * When 1 first saw the Kelly car she seemed to round the turn. When she rounded the turn she came over into what would be my right side of the road, as a good many cars do in making a turn. Q. How fast, in your judgment, was the Kelly car travelling when you saw it ?

A. In my judgment she was traveling thirty-five miles an hour or more; nothing less than thirty-five miles per hour.” After the accident, he said, he went to the automobile under which Mrs. Kelly lay, and to ³³² quote further from his testimony: “When I came around his wife was lying on the flat of her hack in the road. Just as I came around he leaned over his wife like and called her by name. Evelyn, I think. ' I& that correct ? He said, ‘Evelyn, Evelyn speak.’ Evelyn didn’t speak.

He looked up at me and said, ‘What is the matter with you ? What are you turning across the road and running into me for?’ I said, man, what is the matter with you ? You had clearance on the road but didn’t use it; the thing to do now is to get the lady to the hospital and never mind the car. That is about all the conversation there was between us.” Hr.

William T. Morrison, who saw the truck soon after the accident, said in part: “The head of the