Vernon v. Aubinoe

Smith, J., delivered the opinion of the Court. We shall here affirm the action of a trial judge who .-granted motions to dismiss at the end of the plaintiff’s ¹⁶¹ case in a suit arising from injuries sustained on a District of Columbia sidewalk. Appellant Mamie Vernon claimed in her suit that she fell on October 19,1967, while “walking on the public sidewalk and driveway entrance in front of 8411 Davenport Street, N. W.” She originally sued five individuals whom she alleged to be the owners of the land abutting the sidewalk. She did not allege the existence of a partnership.

Voluntary orders of dismissal were entered as to two of those defendants, leaving in the case the appellees, Alvin Aubinoe, Alvin Aubinoe, Jr., and George W. Huguely. The trial judge said in relevant part in passing upon motions to dismiss at the end of plaintiff’s case: “[T]he Court, feeling that, although there has been mention of the Aubinoe Company, and mention of the fact that Alvin Aubinoe, Inc. made some repairs to the hole in which the plaintiff allegedly fell, that there is no evidence in the case from which the jury can ffnd that any of the individual defendants had any indicia of ownership, or maintained any control over the property in question, there having been no evidence introduced as to their ownership of either the portion referred to as the sidewalk, or the public sidewalk, or the driveway. “Therefore, the Court grants a directed verdict in favor of all defendants.” A motion for a new trial was rejected with the comment: “Upon motion for a new trial the Court has reviewed the entire record in this cause together with the deposition of Dorothy A. Clearwater taken on Tuesday, May 6, 1969. The purpose of such review was to determine whether there was any testimony to establish ownership or control in any of the defendants hereto of the real property or premises upon which the defective con ¹⁶² dition alleged to have been the proximate cause of the plaintiff’s injury was located. Although there are numerous references to the Aubinoe Company, the Aubinoe people, Alvin W. Aubinoe Inc., Mr. Aubinoe and Mr. Aubinoe, Jr., and to their efforts to make repairs, there is, in the Court’s opinion no evidence to establish that any of the defendants in this cause owned or controlled the alleged defective premises or that they had a responsibility to maintain same.” Mrs. Vernon gave notice pursuant to Code (1965 Repl.

Vol.), Art. 35, §§ 47-53 of her intent to rely on foreign law, referring to certain District of Columbia cases. Accordingly, the case was tried under the law of that jurisdiction. See White v. King, 244 Md. 348, 352 , 223 A. 2d 763 (1966). Maryland law, however, controls as to the inferences to be drawn from the evidence, the sufficiency of the evidence, the inferences from it to go to the jury and other procedural matters.

Joffre v. Canada Dry, Inc., 222 Md. 1, 6 , 158 A. 2d 631 (1960); Doughty v. Prettyman, 219 Md. 83, 88 , 148 A. 2d 438 (1959); and Tobin v. Hoffman, 202 Md. 382, 386 , 96 A. 2d 597 (1953). Under the District of Columbia cases it was necessary to prove ownership or control of the premises. This case is considered under the oft stated rule that the evidence and all logical and reasonable inferences deducible therefrom are to be considered in the light most favorable to the plaintiff. Callahan v. Reynolds, 254 Md. 625, 629 , 255 A. 2d 70 (1969); McClearn v. Southeast Concrete Co., 253 Md. 135, 137 , 251 A. 2d 896 (1968), and cases cited in each.

No apparent attempt was made to establish the identity of the owner of the premises nor the identity of those in control of the premises. It is assumed that Mrs. Vernon, a tenant, was cognizant of the identity of the owner. It is obvious that Mrs. Vernon could have established the actual ownership as a part of the facts of her case by resort to Maryland Rule 421 concerning admission of relevant matters of fact. ¹⁶³ In her testimony Mrs. Vernon described where the accident took place. She made no reference to the ownership or control of the area or of the adjoining apartment building.

Her only other witness was a cousin who visited her on the day of the accident. This witness also described the happening of the accident, but made no reference to ownership or control of the relevant areas. The deposition of Enouch Faison, a former janitor, was. read into the record. He replied in the affirmative to the question: “Was there a time when you were employed by the Aubinoe Company and worked at 8511 Davenport Street, Northwest?” On another occasion the question directed to him by counsel for Mrs. Vernon was: “Would you tell us what your duties were when you were working for the Aubinoe people ?” These were the sole references to the name “Aubinoe” in his testimony.

He did indicate that Mrs. Clearwater was the resident manager at the time. A part of the deposition of Dorothy A. Clearwater, the resident manager, was also read into the record by counsel for Mrs. Vernon. Although she described herself as the resident manager for the period in question, she was not asked by whom she was employed, nor does it appear from her answers whether her employer was an individual, a corporation, or a partnership. At one point the deposition reads as follows: “Q. And did you request Alvin Aubinoe to do the driveway?

A. I did mention that they were warned, and a little black top wouldn’t do any harm. “Q. You mentioned this to who? A. Mr. Osborne, the construction man.” There was further reference to Mr. Osborne and repairs.. Then another portion of the deposition read r ¹⁶⁴ “Q. Page 29 — All right. Then the interrogatory where Mr. Aubinoe said they sent someone to make a repair, do you know what they repaired ?

A. Only the shallow hole, I suppose.” Interrogatories were propounded by Mrs. Vernon to Alvin Aubinoe. No interrogatories were submitted to the other four defendants. In response to an interrogatory as to “whether any reports of a defective condition of the said walk * * * in front of 3511 Davenport Street, N.W. * * * were made to [him] by anyone in the three year period prior to October 19, 1967”, Mr. Aubinoe replied that none were made from January 20, 1966, through October 19, 1967, with its being unknown whether any such were made prior to January 20, 1966. The fourth interrogatory asked Aubinoe to “state whether the defendants received any complaint concerning the condition of the sidewalk * * * in front of 3511 Davenport Street, N.W. * * * in the three year period prior to October 19, 1967”, with additional information being requested if answered in the affirmative.

Aubinoe replied in the negative as to the period January 20, 1966, through October 19, 1967, stating it was unknown whether there were any such complaints prior to January 20, 1966. The 11th interrogatory asked information as to when the driveway was installed, whether any defendant or agent received a permit for its installation and by whom said permit, if any, was issued and when. Mr. Aubinoe’s response to this was that he did not know when the driveway was installed, that no defendant or agent received a permit for its installation and he did not know by whom any permit might have been issued. The 12th interrogatory asked “whether any repairs were made to the sidewalk and driveway entrance to 3511 Davenport Street, N.W. * * * after October 19, 1967” and, if “yes”, who made the repairs, when they were made, the type of repairs that were done and whether a permit was obtained for the repair.

The answer to that question was as follows. “Yes, by the construction department of Alvin L. Aubinoe, Inc., and although the exact date ¹⁶⁵ of repairs is not known, it was shortly subsequent to October 19, 1967. Sack-crete black top was placed in the depression; because it was a very small depression, no permit was taken out.” These four interrogatories and the answers to them were read into the record by Mrs. Vernon’s attorney. They with the two depositions previously mentioned and the testimony of Mrs. Vernon and her cousin constitute the complete record relative to ownership or control of the apartment building where the accident took place. It is obvious that the evidence thus presented by Mrs. Vernon is not susceptible on its face of an inference that any of the defendants owned or controlled the premises.

As far as it can reasonably be said to go is that Mrs. Clearwater was the “resident manager”; that she was employed “by the Aubinoe Company”, sometimes known as “the Aubinoe people”; that repairs were made by the construction department of Alvin L. Aubinoe, Inc., after a request to “Alvin Aubinoe”, later identified as being to “Mr. Osborne, the construction man”; and that Alvin L. Aubinoe, individually, had some knowledge of the premises and probable connection with Alvin L. Aubinoe, Inc. Therefore, unless something more can be brought into or read into the evidence, the evidence presented falls far short of establishing ownership or control of the premises by any of the defendants. Mrs. Vernon attempts to work her way free from her problem by contending that there was a judicial