Walston v. Sun Cab Co.

Barnes, J., delivered the opinion of the Court. This case is before us as a result of our granting a writ of certiorari on July 29, 1972, directed to the Court of Special Appeals upon the petition of Richard B. Walston, etc., et al., appellees in the case of Sun Cab Company, Inc., et al. v. Richard B. Walston, etc., et al., 15 Md. App. 113 , 289 A. 2d 804 , decided by the Court of Special Appeals on April 17, 1972, they becoming appel ⁵⁶¹ lants in No. 121, September Term, 1972, now before this Court for decision. On September 21, 1972, the appellants in the present case before us filed a motion to strike portions of the brief of the appellee, Sun Cab Company, Inc. (Sun Cab), on the principal ground that such portions of Sun Cab’s brief related to points decided adversely to it by the Court of Special Appeals, but in regard to which Sun Cab had filed no cross-petition for certiorari so that those points were not properly before us for review. 1 We denied this motion on October 11, 1972, without prejudice to renew the motion and argue it at the time of the argument on the merits. The appellants did renew their motion to strike at the time of argument and counsel for the parties fully argued the matter prior to argument on the merits.

We reserved ruling on the motion then and proceeded with argument on the merits. Three principal questions are to be determined by us, i.e., (1) should we grant the appellants’ motion to strike; (2) in a wrongful death case, must the trial court upon request of the defendant instruct the jury that damages to the plaintiff must be reduced to present value; and, (3) assuming for the argument that such an instruction must be given, did the trial court in the present case substantially cover the necessary instruction in the instructions given so that there was no prejudicial error? Shortly after 1:00 P.M. on July 28, 1967, Mrs. Dorothy A. Walston entered a taxicab owned by the appellee, Sun Cab, and operated by Curtis Lee Ash, on Edmondson Avenue in Baltimore City. The cab headed east.

Approximately 300 feet east of Hilton Street, at a point where ⁵⁶² a raised concrete median strip divided Edmondson Avenue, to separate eastbound and westbound traffic, the cab crossed the median strip and struck a westbound truck, operated by its owner, Wilton Ernest Moore. Mr. Moore’s son, James, was a passenger in his father’s truck. Mrs. Walston was killed; Mr. Ash, Mr. Moore and his son, James, were injured. Judge Jerrold V. Powers, for the Court of Special Appeals, described the proceedings in the trial court as follows : “Suit claiming damages for wrongful death was filed against Sun Cab and Ash by Richard B. Walston, surviving husband of Dorothy Walston, and by her six children, whose ages at the time of her death ranged from just under three to not quite twelve.

A claim by Mr. Walston as Administrator was included. Mr. Moore and his son in separate cases sued Sun Cab and Ash. In the son’s case, Mr. Moore was next friend, and individually asserted his derivative claim. Mr. Ash, with leave of court, sued the Commissioner of Motor Vehicles, and by later amendment, added the Unsatisfied Claim and Judgment Fund Board, as stand-ins for an unidentified driver of another vehicle alleged to have been involved. “The four cases were consolidated, and tried before a jury and Judge Joseph C. Howard in the Superior Court of Baltimore City.

Trial began on February 9, 1971, and was concluded with the jury’s verdicts on February 23, 1971. In the suit of the Walstons against Sun Cab and Ash the verdict was for the plaintiffs. Damages were assessed in favor of the Administrator at $1,000.00; in favor of the surviving husband at $125,000.00; and in favor of the six children at $100,000.00 each. In the suit of Ash ⁵⁶³ against the Unsatisfied Claim and Judgment Fund Board the verdict was for the defendant.

In the suit of Wilton E. Moore against Sun Cab and Ash the verdict was for the plaintiff and damages were assessed at $14,500.00. In the suit of James Moore against Sun Cab and Ash the verdict was for the Plaintiffs. Damages were assessed at $1,500.00 for James Moore, and at $205.00 for his father’s derivative claim.” 15 Md. App. at 119-20 ; 289 A. 2d at 809 . The Court of Special Appeals affirmed the judgments in favor of Richard B. Walston, Administrator, the Unsatisfied Claim and Judgment Fund Board, Mr. Moore and his son, James.

It affirmed the judgment in the wrongful death claim of the surviving members of Mrs. Walston’s family, as to liability, but reversed it in regard to damages because of error in the instructions of the trial court and remanded that portion of the case to the trial court for a new trial on the question of damages. It ruled in favor of the appellants here on the other points (approximately 20) raised by Sun Cab before the Court of Special Appeals. As we have indicated, the appellants here filed a petition for certiorari limited to the one matter decided adversely to them by the Court of Special Appeals, presenting four legal questions relating to that one matter for review. We granted that petition on June 29, 1972, and in accordance with our practice, docketed the case as No. 121 on our Appellate Docket in the September, 1972 Term, designating “Richard B. Walston, etc., et al.” as “Appellants” and Sun Cab Company, Inc., as “Appellee.” Sun Cab filed no cross-petition for certiorari, and yet, in its brief filed in the present case before us, argued at least four questions decided adversely to it by the Court of Special Appeals.

The motion to strike those portions of the Sun Cab brief in regard to those points was then filed as we have indicated. ⁵⁶⁴ (1) We have concluded that the appellants’ motion to strike should be granted, so that we will not consider the questions decided adversely to Sun Cab by the Court of Special Appeals, they not being the subject of any cross-petition for certiorari filed by Sun Cab. We have held many times that an appellee who does not file a cross-appeal cannot urge before us matters not within or related to the issues raised by an appellant. Even if a judgment or decree is prejudicial to an appellee, such prejudice will be disregarded by this Court if there was no cross-appeal filed by the appellee. Moreover, such appellee cannot obtain anyq affirmative relief by way of reversal, amendment or modification of the judgment or decree under review in this Court.

See, e.g., Temple Hill Baptist Church v. Dodson, 259 Md. 515, 521 , 270 A. 2d 802, 806 (1970) ; Glen Alden Corp. v. Duvall, 240 Md. 405, 421 , 215 A. 2d 155, 167 (1965) and prior Maryland cases cited in that opinion. See also Fennell v. G.A.C. Finance Corp., 242 Md. 209, 229 , 218 A. 2d 492, 502-503 (1966). The question presented here is whether the same rule in regard to appeals as of right applies to cases coming to this Court by way of the exercise of its discretion in granting writs of certiorari to lower courts, principally the Court of Special Appeals. We have concluded that the same rule does apply.

The constitutional amendment adding Section 14A to Article IV of the Maryland Constitution, Chap. 10 of the Laws of 1966, ratified by the electorate on November 8, 1966, was a general grant of power to the General Assembly to create by law “such intermediate courts of appeal, as may be necessary” and to “prescribe the intermediate appellate jurisdiction of these courts of appeal, and all other powers necessary for the operation of such courts.” The immediate purpose of this constitutional amendment was to enable the General Assembly to ⁵⁶⁵ relieve this Court of the substantial increase of criminal appeals which had inundated the Court and yet provide at least one appeal as of right, either to this Court or to an intermediate court to be created by statute. There was also an underlying general purpose to provide sufficient flexibility in the grant of power by the constitutional amendment to provide for a grant of appellate power to the intermediate appellate court or courts to be created over certain — or perhaps ultimately all — civil cases. 2 Chapter 11, § 1 of the Laws of 1966 created the Court of Special Appeals, Code (1957, 1966 Repl. Vol.) Art. 26, § 130, and defined its appellate jurisdiction in criminal cases where the sentence was other than death, “subject in each such case to a further appeal to the Court of Appeals as provided by § 21A of Article 5 of this Code . . . .” (Emphasis supplied) Chapter 12, § 1 of the Laws of 1966, Code (1957, 1968 Repl. Vol.) Art. 5, § 21A, originally a companion bill to Chap. 11 of the Acts of 1966, provided that in the cases subject to the jurisdiction of the Court of Special Appeals if it appeared “upon petition of any party, . . . that a review is desirable and in the public interest, [this Court] shall require, by certiorari or otherwise, any such case to be certified to the Court of Appeals for its review and determination . ...” 3 Reading this statutory material together, it is clear to us that the General Assembly intended to give an appeal, as of right, in cases within the appellate jurisdiction of the Court of Special Appeals and a “further appeal” by our exercise of discretion in granting writs of certiorari when review and determination by us appear to be “desirable and in the public interest.” ⁵⁶⁶ This legislative intent is supported by (a) such legislative history of the legislation that is available, (b) by our certiorari practice, (c) by analogy to the certiorari practice in- the Supreme Court of the United States, and (d) by a sound concept of public policy.

(a) The constitutional amendment and implementing legislation was largely conceived and originally promoted by the Maryland State Bar Association. We note that the earliest reference to certiorari jurisdiction was in 1959 in which the Committee of the Maryland State Bar Association, appointed to consider the matter, referred to certiorari jurisdiction to relieve the case load of this Court as “abolishing the absolute right of appeal and substituting permissive appeal . . . .” 64 Transactions, Maryland State Bar Association at 398 (1959). (Emphasis supplied) Later, the State Bar Committee reconsidered the whole subject and on June 24, 1965, recommended the creation of the Court of Special Appeals limited originally to appellate jurisdiction in criminal (other than death cases), post-conviction and defective delinquency cases. The Committee’s basic premise was that “a litigant is entitled to at least one appeal as a matter of right in each case and where this appeal was to the Court of Special Appeals, a petition for a writ of certiorari could be filed to the Court of Appeals by the litigant adversely affected whether it be the accused or the State.” (Emphasis supplied) This Report was unanimously adopted by the Maryland State Bar Association, 70 Maryland State Bar Association at 134 (1965).

This Committee Report was submitted to the Legislative Council of the State of Maryland, which reported to the General Assembly of 1966, pages 219-20 of the Legislative Council Minutes, as follows: “(1) Constitutional amendment authorizing the General Assembly by law to create an intermediate court, to specify its jurisdiction, ⁵⁶⁷ number of judges and all other necessary details. “(2) Statute generally following the plan recommended by the Case Committee to the Maryland State Bar Association for a five judge court sitting in Annapolis to hear criminal cases on appeal. A further right of appeal to the Court of Appeals is allowed on certiorari.” (Emphasis supplied) In regard to the two bills which the Legislative Council had completed when it submitted its Report to the General Assembly of 1966, the Legislative Council stated at 51 of its Report: “Some of the details necessary for the operation of the new court were not considered by the Council and will be placed in a third bill. This bill would create a clerk for the Court of Special Appeals, permit appeal to the Court of Appeals by writ of certiorari only and fix the salaries and pensions of the new judges.” (Emphasis supplied) It thus appears that the General Assembly intended that the certiorari procedure was to provide for a discretionary appeal. (b) We have so interpreted the legislation by our uniform practice in regard to the certiorari procedure.

When we grant a petition for a writ of certiorari, the case is transferred from the Miscellaneous Docket to the Appellate Docket, the petitioner being designated as the “Appellant” and the respondent as the “Appellee.” It receives a number for appeals in the September Term involved and is treated on the Appellate docket like any other appeal. In short, we have treated the procedure as affording a discretionary appeal; and when the discretion ⁵⁶⁸ to grant the petition is exercised, the case is treated like every other appeal. It should also be observed that in Maryland Rule 811, entitled “How Appeal to Be Taken” (Emphasis supplied) , paragraph a provides for the taking of an appeal “By Filing Order” and paragraph b “by Petition for Certiorari.” Thus the two methods of taking an appeal— one as of right by filing an order for appeal, the other— by filing a petition for certiorari addressed to our discretion — are consistent with the intention of the General Assembly in this regard which we have already discussed. (c) Our practice in regard to the certiorari procedure closely follows the certiorari practice of the Supreme Court of the United States.

Robertson and Kirkham, Jurisdiction of the Supreme Court of the United States (Wolfson and Kurland ed. 1951) summarizes the Supreme Court practice in regard to cross-petitions for certiorari in § 428, pages 860-62, as follows (footnotes omitted) : “In the absence of a cross petition respondent is not entitled to be heard in opposition to the parts of