Smith v. Branscome

Barnes, J., delivered the opinion of the Court. The appellees, Arnold Lee Branscome and Arthur X. Min-nick, as the original plaintiffs below, filed an action in the Circuit Court for Harford County against the appellant, Milton O. Smith (Milton), his brother William Kennard Smith (William) and Raymond Lee Green (Green) to recover for ⁵⁸⁵ personal injuries resulting to both plaintiffs and for property damage to Branscome’s automobile allegedly caused by the negligent operation of Green’s automobile on Route 22 near Fountain Green, Harford County on October 31, 1964, at about 6:50 p.m. On July 1, 1966, the lower court permitted the joinder of Selected Risks Insurance Company as an equitable plaintiff so that it could assert its right of subrogation as the insurance carrier for Branscome to the extent of the net amount of $2,390 which it had paid for property damage to Branscome’s automobile resulting from the accident. The trial court (Day, C.J.) declined to submit the case to the jury on issues as authorized by Maryland Rule 560, but instead directed a verdict in favor of Green and submitted the case to the jury generally in regard to the defendants Milton and William.

The jury returned general verdicts against Milton and William for $5500 in favor oE the plaintiff Branscome, for $2000 in favor of the plaintiff Minnick, and for $2390 in favor of Selected Risks Insurance Company, the equitable plaintiff. The trial court overruled Milton’s motion for a judgment n.o.v., or in the alternative, for a new trial, and from the judgment absolute entered upon the verdict against Milton on October 24, 1967, Milton filed a timely appeal to this Court. William did not appeal. Milton met Green between 10:00 and 11:00 a.m. on October 31, 1964, ou the parking lot of Hannah Moore’s Bar in Bel Air, Harford County.

Green told Milton that Green’s automobile had defective brakes which caused the car to pull to one side and asked Milton to trade automobiles as Green wanted to drive to Baltimore. Milton agreed to the exchange of automobiles. Green gave Milton the keys to his automobile and drove to Baltimore in Milton’s car. Immediately thereafter Milton went into Hannah Moore’s Bar and began drinking beer and whiskey.

He was joined at that bar at about 3:30 or 4:00 p.m. by his brother William who drank with him. Milton testified that he remembered placing his television set in the Green automobile sometime during the day and locking it up and that later he entered the Green automobile and had gone to sleep. He was intoxicated and stated that he had no recollection of leaving Hannah Moore’s. William also became intoxicated.

His license to operate a ⁵⁸⁶ motor vehicle had been previously revoked and on the day of the accident he had no license to drive an automobile. He testified that prior to leaving the bar, he got in the back seat of the Green automobile and went to sleep, and that it was darle when Milton and Robert Brooks came to the Green automobile and woke him up. He testified that when they left the parking-lot of the bar, Milton was driving and Brooks was on the-right-hand side on the front seat. He also stated that Milton told him the day after the accident that Milton was driving,, that he had asked Milton to get the matter cleared up and that Milton said he would.

State Trooper Ensor, who investigated' the accident, testified that the Green automobile had crossed’, the center line of Route 22 to strike the Branscome vehicle. The occupants of the Branscome car were sober, the occupants-of the Green vehicle were “apparently all under the influence.” He further testified that in the Harford Memorial Hospital he-asked William who was driving and William replied, “I was.” Trooper Ensor had also discovered that the Green automobile-had made a stop at the Fountain Green Food Market prior to-the accident. State Trooper Reith, who although off-duty at the time happened to be passing the scene of the accident enroute to the Harford Memorial Hospital to visit a friend, arrived at the scene three or four minutes after the accident occurred. He-testified that when he arrived, William was behind the wheel of the Green automobile, slumped to the right toward the-passenger side, Milton was next to him on the right and Brooks-was out of the car, having been thrown from the vehicle by the force of the impact.

The car “reeked with intoxicants. * * *" I had trouble administering any first aid to any of the parties-involved, due to their conditions, and I couldn’t get anything verbally out of them.” Milton testified that he was “good and drunk” and that the day after the accident he had gone down to the State Police Barracks and “told them I was driving.” On cross-examination he testified that he made this statement to the police “Because my brother, he called me and told me I was.” He later testified that he did not know who was driving the Green automobile as. he knew nothing about having the accident. ⁵⁸⁷ Milton was not injured as a result of the accident. William suffered a laceration of his face and his chest and the upper part of his stomach was bruised. Trooper Ensor testified that there had been damage to the steering wheel of the Green automobile and there was some blood on the steering wheel, thereby drawing the inference that William must have been behind the wheel at the time of the accident. Counsel for Milton filed motions for a directed verdict as to him at the end of the plaintiffs’ case and at the end of the entire case on the ground that there was no evidence legally sufficient to indicate that Milton was the operator of the Green vehicle.

The trial court, on each occasion, denied these motions, and at the end of the case instructed the jury, in part, as follows: “Now, in this case, if you find that the control and possession of the automobile had been given by the owner, Green, to Milton Smith, that William Smith was driving at the time of the collision, and that Milton Smith was riding in the vehicle and that both were intoxicated, then the verdict must be against Milton Smith as well as against William Smith.” Counsel for Milton excepted to this portion of the charge to the jury “for the reason that that is not the law of the State of Maryland, that a person who has been loaned an automobile by someone else does not place upon that person the burden or the right of control. The right of control remains with the owner alone, and this cannot be shifted to someone else merely because they are using the automobile. * * * He [Milton] had no right of control. He merely was borrowing a car from someone else, and if another person is driving that automobile there is no imputation of negligence to him under the Maryland law.” In rendering the verdict against Milton and William, the foreman of the jury stated “We find William Smith to be the driver” and “we find Milton Smith guilty of negligence.” The verdicts were entered as general verdicts against Milton and William in favor of the respective plaintiffs in the amounts heretofore set forth. Milton, the appellant, presents two questions for our decision : ⁵⁸⁸ (1) Did the trial court err in refusing to grant Milton’s motions for a directed verdict ?

(2) Did the trial court err in permitting the jury to consider the imputation of negligence to Milton ? We have concluded that the trial court did not err in either regard and the judgments against Milton will be affirmed. (1) In our opinion, the trial court properly refused to grant Milton’s motions for a directed verdict on at least two grounds, i.e., (a) there was direct substantive evidence from which the jury could find that Milton was driving the Green automobile, and (b) there was evidence from which the jury could conclude that Milton was responsible even though he was not personally at the wheel of the Green car at the time of the happening of the accident. (a) As we have already indicated, William testified that when he and his brother, Milton, left the bar in Bel Air in the Green automobile, William was in the back seat and Milton was driving the vehicle.

He also testified that the day after the accident, Milton told him that Milton was driving. Milton stated that the day after the accident, he told the State Police that he was driving. Milton never denied that he was driving at the time of the accident; he merely stated that he did not know. Milton also did not deny that on the day following the accident he told William that he, Milton, was driving.

Although there was evidence that at the hospital following the accident, William told the state trooper that he (William) was driving and that “they had been out on a party,” William testified at the trial that he was not driving when the accident occurred and did not know who was driving. In our opinion, there was legally sufficient evidence which would have supported a finding that Milton was the driver of the Green automobile and this question was properly submitted to the jury. Milton contends that his admission the day after the accident that he was the driver of the Green automobile does not have “any substantive or independent testimonial value” in that such testimony may only be used to impeach the ⁵⁸⁹ witness and may not be treated as substantive evidence as an admission against interest. Although Milton’s contention would be correct if applied to an ordinary witness in a case, it is not correct when applied to the admissions against interest made by a party opponent in a case.

Milton was a party of the record to the case and any declaration made by him against his interest is receivable in evidence to prove the truth of the matter admitted by him as a party. As Judge Markell, for the Court, in Lambros v. Coolahan, 185 Md. 463, 468 , 45 A. 2d 96, 98 (1945), aptly stated: “* * * oral admissions of a party ‘are universally deemed admissible’ and legally sufficient to prove facts admitted. Wigmore, Secs. 1048, 2075.” In Terry v. O’Neal, 194 Md. 680 , 72 A. 2d 26 (1950), this Court held that a statement to the police by the defendant after an automobile accident that he was driving the car was legally sufficient to prove the fact admitted by the defendant, citing with approval and following Lambros . In Joppy v. Hopkins, 231 Md. 52 , 188 A. 2d 545 (1963), an automobile accident case, we held that a prior statement by the plaintiff was admissible both to impeach her testimony and as an admission against interest, citing with approval and following both Terry and Lambros .

See Kantor v. Ash, 215 Md. 285, 290 , 137 A. 2d 661 , 664, 69 A.L.R.2d 585, 590 (1958) ; Tellez v. Canton R. R. Co., 212 Md. 423, 431 , 129 A. 2d 809, 813 (1957) ; Hynes v. Wilson, 147 Md. 360, 363-64 , 128 A. 70, 71 (1925) ; and Bartlett v. Wilbur, 53 Md. 485 (1880). 1 See also 4 Wigmore, Evidence § 1048 (3rd Ed. 1940), McCormick, Evidence § 239 at 502-04 (1954), 29 Am. Jur. 2d Evidence § 600 at 655-56 (1967) and 31 A, C.J.S. Evidence § 272 at 697 (1964). Milton relies on a dictum in West v. Belle Isle Cab Co., ⁵⁹⁰ 203 Md. 244 , 100 A. 2d 17 (1953) for his contention that the disputed evidence cannot be treated as having any substantive weight. Judge Hammond stated there: ' “[T]he general rule is that prior statements which are produced at the trial to impeach a witness are not probative evidence but may be used only for impeachment.” ( 203 Md. at 253 , 100 A. 2d at 21 .) As an abstract statement, this is undoubtedly a correct statement of the law, since Judge Hammond specifically referred to a “witness” and not a “party.” Further, in the next sentence he refers to Wigmore, Evidence § 1018 (3rd Ed., Vol.

Ill), as support for this rule. Significantly, this section refers only to impeachment of witnesses by “Self-Contradiction” and as to parties, Wigmore has an entirely separate section, entitled “Admissions”, which clearly indicates that the two topics are to be considered as separate and distinct. See 4 Wigmore, Evidence § 1048 ff. (3rd Ed. 1940).

Milton contends, however, that in the context of the West case, the above statement was meant to refer to a party. We believe that a closer analysis of that case reveals that it provides no support for the appellant’s position. The evidence in question there was a statement in a report filed by the driver of the defendant’s cab with the Public Service Commission. In describing the occurrence of the accident, he stated “She [the plaintiff] claims she walked from the west side to the east side of the cab and had walked into same.” On appeal from a jury verdict in favor of the defendant, plaintiff claimed that the trial judge made several errors in his instructions, among them, failing to instruct on the issue of last clear chance and failing to tell the jury that they could find primary negligence from the testimony of any witness on either side.

It was claimed that the above statement, if substantive evidence, would have been the basis for a theory of recovery which the jury had not considered, i.e., that the plaintiff, although out of the crosswalk, had been crossing the street from the far side so that the cab driver should have seen her, contrary to all of the other evidence that she walked out directly into the lane in which the defendant’s cab was proceeding. ⁵⁹¹ The circumstances under which the statement in question was admitted into the case do not appear in Judge Hammond’s opinion, but we believe that this should make no difference. If the plaintiff had originally offered the statement to impeach the cab driver, then it would have, in fact, been a statement of a witness and not of a party, and accordingly, should not have had any substantive weight. If, on the other hand, it had been ■offered by the defendant to impeach the plaintiff’s other testimony that she was crossing at the crosswalk, then the statement cannot be considered a prior inconsistent statement by the plaintiff. The extra-judicial declarant would then be the operator of the cab who had stated that the plaintiff had made the alleged inconsistent statement.

The result of this would be that the statement was double-hearsay, an out-of-court statement ■allegedly made by the plaintiff and repeated out-of-court by the -driver. In effect, it is a self-serving declaration by the driver that created the inconsistency, and it was certainly proper for Judge Hammond to indicate that it should not be given any substantive weight. Also, it is important that it was the plaintiff who was claiming that substantive weight, in her favor, should be given to .a prior inconsistent statement of her own. Certainly, this is quite different from the normal situation of an admission by a party being used substantively against him.

As Professor Wig-more points out: “[T]he party’s testimonial utterances do not pass the gauntlet of the Hearsay rule when they are offered for him (unless they can satisfy some exception to that rule) ; but * * * they do pass the gauntlet when they are offered against him as opponent, because he himself is in that case the only one to invoke the Hearsay rule and because he does not need to cross-examine himself.” (4 Wigmore, Evidence § 1048 at 3 (3rd Ed. 1940).) (Emphasis in original.) In any event, it is clear Judge Hammond’s language is dictum, ;as he found not only that the trial judge’s instructions actually covered all of the points which plaintiff claimed were left out, ⁵⁹² but he also found that there was nothing in the above statements inconsistent with the plaintiff’s other testimony. Nor do we believe that we should consider as authoritative the language in Sun Cab Co. v. Cusick, 209 Md. 354 , 121 A. 2d 188 (1956) where Judge Delaplaine stated that a prior statement of a witness may be used for impeachment purposes but not as substantive evidence, in referring to a witness who was also a party. Clearly, this is dictum as the Court’s holding makes it clear that even if the allegedly inconsistent statement were the truth, it would have no effect on the liability of the parties, but also points out that the physical evidence conclusively shows that the statement could not have been true, and in any event, the Court indicated that it .was very doubtful the defendant ever made the statement at all. We believe we need only recognize that we agree, as an abstract proposition of law, that a “statement made by a witness prior to the trial is admissible for the purpose of impeaching the witness, but not as substantive evidence,” 209 Md. at 361-62 , 121 A. 2d at 191 , and it is not necessary for us to attempt to determine exactly what Judge Delaplaine intended in applying this language to the facts of the Cusick case.

(b) In any event, however, there was evidence from which the jury could conclude that Milton was responsible even though he was not personally at the wheel of the Green car when the accident happened. It is clear from the evidence that either Milton or William was the driver of the Green vehicle. We have indicated that there was sufficient evidence to support a finding by the jury that Milton was personally at the wheel, but there is also evidence which would justify a finding by the jury that William occupied that position. If it be assumed for the purpose of argument that William was personally at the wheel, Milton was nevertheless present in the Green automobile of which he had possession and control as a bailee of Green.

Milton and his brother William were on a drinking party. Not only was William intoxicated but it would also be illegal for him to drive as his operator’s license had been previously revoked. There is little question, therefore, that the automobile was being unlaw ⁵⁹³ fully operated. Code (1957) Article 66^2, § 86 prohibits the driving of a motor vehicle on Maryland roads by any person (other than those exempt) not having a valid driver’s license and § 206 makes it unlawful for any person to operate a motor vehicle under the influence of intoxicating liquor.

Section 113 provides the following: “Permitting unauthorised person to drive. “No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway of this State by any person who is not authorized to operate such motor vehicle under this article (emphasis supplied). “Violation of this section shall be deemed to be a misdemeanor * * Inasmuch as Milton had custody and control of the Green vehicle, if he permitted William, an unauthorized person, to drive, this negligent and unlawful act would render Milton liable for the resulting damages. Both Milton and William had voluntarily engaged in the drinking party and both were under the influence of intoxicating liquor. As a person who aided and abetted the unlawful operation of the Green automobile, Milton was a principal in the unlawful operation. See State v. Nall, 239 N. C. 60, 65-66 , 79 S.E.2d 354, 358 (1953); see also Ferguson v. State, 198 Miss. 825 , 23 So. 2d 687 (1945) ; Annotation, What constitutes driving, being in control of, or operating a motor vehicle within statute making such act, while intoxicated, an offense, 47 A.L.R.2d 570 , 586 (1956).

Milton earnestly contends that he is not