Middleton v. Morgan

Hammond, C. J., delivered the opinion of the Court. Marian Morgan and her husband sued two doctors in the Superior Court of Baltimore, alleging that in the course of an operation upon Mrs. Morgan the doctors had left inside her a surgical sponge, with consequent painful and harmful effects. The doctor replied in June 1969 that they did not commit the wrongs alleged and in February 1971 suggested to the court “that they cannot have a fair and impartial trial in this Court,” and prayed the court “to order and direct the removal of the record of the proceedings in this case to some other Court having jurisdiction for trial.” Judge Cole ordered the case removed to “some other court having jurisdiction,” namely, the Court of Common Pleas of Baltimore City. He did this despite the urging of the movants that the case be sent outside Baltimore after they refused to tell him what, if any, prejudice they would suffer if the case were tried in the City.

The movants were un ¹⁵⁶ varying in the non-specificity of their responses to various questions of Judge,Cole as to the nature and extent of the claimed prejudice, saying that they were not required to go beyond the allegation in the suggestion of removal and that they are not “required to assign a reason [for the prejudice of Baltimore City jurors].” When Judge Cole persisted, asking “what has happened in the Baltimore community which gives a climate which would give your clients an unfair trial?” counsel replied: “I submit that I am not required to answer that to effectively exercise the defendants constitutional rights of removal.” He said that the prejudice “extends throughout Baltimore City * * * throughout the entire community.” In their appeal from Judge Cole’s refusal to send the case outside the City, the doctors say they were denied their constitutional right of removal guaranteed by Art. IV, § 8, of the Maryland Constitution. The claim is that the right of removal is given to enable escape from the prejudices of jurors in a given community and a removal from one court in Baltimore to another does not gratify the purpose and desired effect of the constitutional provision. Appellants recognize (but do not expressly acknowledge) that Weiskittle v. State, 58 Md. 155 , decided in 1882, is flatly against their contention, holding as it did that a removal from one court in Baltimore City to another was a removal within the contemplation of the constitutional provision, but they strongly urge that the case should be distinguished because in 1882 each court in Baltimore drew its own panel of jurors and in 1971, although each court has its own panel, all the jurors are treated as a pool and may sit from time to time in any court. We are not persuaded.

In Weiskittle , Judge Stone for the Court said at pp. 156-159: “It is enough for the purpose of this decision to say, that none of the Constitutions that have been in force in this State, ever gave to the ¹⁵⁷ party seeking the removal of his case, the right to determine that it should go to a different circuit, except the Constitution of 1867. That Constitution did give the party applying for a removal, the unrestricted right to have his case removed to a different circuit, if he should so elect. “After an experience of seven years it was found that the Constitution of 1867, Art. IV, § 8, (the section that relates to removals,) did not work well in practice, and it was amended by the Act of 1874, ch. 364, which was adopted by the people, and is now a part of the organic law. * * * In the amendment, the