Wolfe v. State Ex Rel. Brown

Offutt, J., delivered the opinion of the Court. James Clarence Brown died on March 7th, 1936, from injuries which he received in an automobile accident, leaving to survive him a widow,- Nellie McCombs Brown, one of the equitable plaintiffs in this case. At the time of the accident he was employed as assistant manager by the Maryland Tobacco Growers Association at an annual salary of $3,000. The widow filed a claim with the Industrial Accident Commission for compensation under Code, art. 101 (as amended).

The claim was allowed and compensation is paid by the Aetna Casualty & Insurance Company, the insurer. Subsequently the widow and the insurer brought this action against Hyman Wolfe to recover damages for the death of Brown, on the theory that the accident which resulted in the injuries from which Brown died was ¹⁰⁷ caused by the negligence of the defendant. The trial resulted in a verdict and judgment for the plaintiff, and from that judgment the defendant took this appeal. The accident,, which occurred on November 13th, 1935, on Maryland Route No. 3, a state highway leading from Washington, D. C., to La Plata, Md., at a point about one-half mile south of T. B. in Prince.

George’s County, was a collision between an automobile operated by Hyman Wolfe, who was driving north towards Washington, and an automobile driven by Brown south towards La Plata. The record submits fourteen exceptions, of which ten relate to rulings on evidence, one to rulings on the prayers, one to an objection to a statement made in the course of an argument by counsel for the plaintiffs, and two to the refusal of a motion for a new trial. That the purpose and relative significance of these exceptions may more readily appear, before considering them seriatim, a summary of the conceded facts and the contentions of the parties will be given. The road at the point of the accident is of macadam with concrete shoulders and is about twenty-two feet wide.

The accident occurred at about 11 o’clock in the morning. At that time it was raining heavily, and had been raining all the morning. Wolfe was driving a Dodge sedan, and Brown a Ford coach. The road at the point of the accident runs about north and south, and when the cars came to rest after the accident both were off the road and west of it.

Near the scene of the accident and east of the road was a telephone pole, called in the testimony “Pole No. 1west of the road near the accident was another telephone pole called' “Pole No. 2.” Hyman Wolfe at the" time of the trial was seventeen years of age and must therefore at the time of the accident have been about sixteen years old. He lived on his father’s farm at La Plata, and at the time of the accident was driving from La Plata to his father’s home in Washington. Brown was about fifty-four years old, and at the time of the accident was traveling on the business of his employer. ¹⁰⁸ The contention of the plaintiff is that, as Brown was proceeding south on the west, his right side of the road, Wolfe, proceeding north, was driving his car at a rate of speed, which, because of the wet, slippery, condition of the road, was highly dangerous, that he was driving it over a curve, and that, because of an emergency created by his own inattention, he was compelled to make a sudden swerve, that as a result of the concurrence of those factors his car skidded into the path of Brown’s car and caused the accident, that the skidding was the natural and proximate result of the negligent and unskillful manner in which Wolfe operated his automobile, that the accident was therefore caused by his negligence, and that he is liable for the 'injuries to Brown which were caused by the collision. The defendant’s contention is that no inference of negligence can be drawn from those facts, which constitute the predicate of the plaintiff’s contention, and also that there is no legally sufficient evidence to show that Brown was on his right side of the road at the time of the collision.

Because of their materiality to a consideration of the defendants’ demurrer prayer, the exceptions relating to rulings on evidence will be first considered. The first person to arrive on the scene after the accident was William Voetz, who was driving north from Waldorf, which is about four miles south of T. B., where he had gone to deliver ice. Before he reached the point at which the collision occurred, a black car, which he took to be a Dodge car, passed him. He did not know then who was driving it, but later he knew that it was Wolfe.

When he 'arrived he found Hyman Wolfe and a companion standing in the road, and discovered that Brown was seriously injured. He drove at once to the bus terminal, a short distance away, called the nearest police substation to report the accident, and then returned to the scene of the accident. He said that he was present at a conversation between Officer White and Hyman Wolfe, in the course of which Wolfe said: “That they were driving along and all of a sudden his partner ¹⁰⁹ said ‘Look out, you are going to hit that telephone pole’ and Wolfe swerved over, and after that everything got black to him, he don’t know what’s going to happen”; that at that time the Wolfe car was about 100 or 150 feet from the west side of the road “into the woods,” and the Brown car about 25 feet from the west side of the road in an open field. Following the testimony of Voetz, J. A. White, a state police officer, testified that he was notified of the accident at about 11 o’clock in the morning of November 13th, 1935, that he and Corporal Bogers then went to the place where it occurred, which was about 2% miles-north of the station, that when he arrived he found the two cars on the west side of the road, the Brown car about 30 feet from the road in a field, and the Wolfe car 150 feet from the road in a little grove of trees.

He saw no skid marks but did see broken glass, and he saw blue paint on a telephone pole on the left side of the road going north, which had apparently come from the Wolfe car. He then said that he asked Wolfe to give “his idea” of what happened, and that Wolfe said “he was on his way to Washington going north up the road, and rounded the curve just below the accident, I guess about one hundred feet below where the cars struck each other, travelling at a speed between forty and forty-five an hour, and as he rounded' this curve he felt the car slipping toward the outer edge of the curve. A very small embankment there, not more than three feet high, slopes gradually off to the flat field, and some distance away was a telephone pole, and from the way the car was slipping toward the outside he felt that it might go headlong into the telephone pole, so he pulled sharply to the left, and to get the car back on the road to avoid hitting this pole. He felt the car turn around and he' saw the other car there, and he remembered nothing from then on.

I asked him if he remembered the car striking the other, and he said no, he did not know anything about it until he found his car up in the grove of balsam trees.” ¹¹⁰ He then compared the paint on the telephone pole with the paint on the Wolfe car, and found that the color of the paint on the pole was the same as that of the paint on Wolfe’s car. At that point a “motion” was made and denied, and that ruling is the subject of the first exception, but as the record fails to indicate the nature or purpose of the motion that ruling is not reviewable. The witness also said that the right hand side of the Wolfe car was damaged, the fenders on the right hand, and the right hand side of the body were smashed, and that the windshield was cracked but still remained in the frame. He was then asked, “Was there or not anything said by Mr. Wolfe to you, or you to him, in this conversation, about the rate of speed at which he was going at the time of the accident?” An objection to the question was overruled and the witness replied: “In endeavoring- to find out something about this accident I asked Wolfe about how fast he was going and he said he had been going between forty and forty-five.

I believe I said ‘You ought to know better than go at that rate of speed with the road in the condition it was this kind of weather.’ ” A motion to strike out the answer was- also overruled, and those rulings are the subject of the second and third exceptions. So much of the answer as related to the speed of the Wolfe automobile at the time of the accident was unobjectionable as an admission against interest (Jones on Evidence, sec. 237, Maurice v. Worden, 54 Md. 233 ; 1 Greenleaf ,on Evidence sec. 171; 22 C. J. 296; Kirk & Sons v. Garrett, 84 Md. 383, 413 , 35 A. 1089 ), and the question which sought that information only was also proper. The answer was in part a proper reply to the question and in part a mere expression of disapproval or censure, more in the nature of an opinion than the statement of a fact, and should upon a proper motion have been stricken out. For, while it is generally held that the failure of one to deny a definite statement, made in his presence and understood by him as charging him with fault or wrongful conduct, may be construed as an admission of the truth of the state ¹¹¹ ment (Jones on Evidence, sec. 289; 22 C. J. 321; 1 R. C. L. 478; 1 Perm.

Ann. R. C. L. 126), that rule should not be extended to include the mere opinion of a third person as to the weight and significance of facts previously admitted by the declarant. The motion was, however, properly overruled, because it went to the whole answer, a part of which was admissible, and was not directed specially to the objectionable part. American Stores v. Herman, 166 Md. 312, 315 , 171 A. 54 ; Jones on Evidence, sec. 895. The same witness later, without objection, gave this testimony: “Q. Can you definitely state where the spot on the road is that the contact of the two cars in effect occurred?

A. Yes, I can. Q. Will you kindly do so? A. Right at that point (indicating) to the left of the center of the road. Q. Identify that more fully if you will?

Will you kindly fix on here the center of the road. (Witness indicates.)” Thereupon this testimony was given: “Therefore, as shown by the diagram, where you place the impact, the point of impact, this particular accident occurred to the left of the center of the road, or what was Mr. Brown’s right hand side of the road? A. That’s right, as I mentioned, it would be the left side of the road looking in a -northerly direction.” A motion to “strike out” was overruled, and that ruling is the subject of the seventh exception. He was then asked: “You have fixed an X mark in the road where you fixed the point of contact of the cars; how, and by what manner do you fix that point of contact?” and answered: “A pile of glass in the middle of the road right at this point.

The glass came from Brown’s car and some small pieces of it from Wolfe’s car.” While the statement of the witness as to the point at which the collision occurred was merely an inference from commonplace facts which the jury were as well qualified to draw as he was, and not therefore the subject of opinion evidence, he had already given the same testimony without objection. There was therefore no reversi ¹¹² ble error in overruling the motion to strike out the answer to the court’s question, which is the subject of the seventh exception. Neither was there reversible error in overruling the objection to the following question, nor in overruling the motion to strike out the answer thereto, which rulings are the subject of the eighth and ninth exceptions. That question and answer merely gave the reasons for the statement, already made by the witness without objection, as to the location of the point of contact between the two cars.

Since the statement itself was in without objection, it is not apparent that defendant could have been injured by a disclosure of the facts upon which it was based, especially since the witness was later permitted to and did describe the glass which he found, and indicated its precise location. Corporal Rogers gave this testimony: “Did Mr. Wolfe make any admissions relating to the happening of this accident at that time? A. Yes. Q. Tell the court what those admissions were?

A. That he, Mr. Wolfe, was en route from La Plata to Washington; that as he approached this turn his car had started to skid, and in pulling the car back, which would be to his left as you go north, he had lost control of the car, and Mr. Brown’s car—(Objection.) He skidded directly in the path of Mr. Brown’s car.” Wolfe admitted that he pulled sharply to the left and skidded directly in the path of Brown’s car. Hyman Wolfe, testifying in his own behalf, said: “I was going to Washington, North, and Mr. Brown was coming South, I was going between thirty-five and forty miles an hour; there is a slight bend in the road, not a turn; I went around- the bend, had a clear vision ahead; there is a pole on my left. I saw this car on my side of the road, naturally I ducked to the right hand side to avoid hitting him, as I did. It was raining for two days, the front wheel of my car hit this dirt and I started back on the road and before I knew it he struck me, his car hit mine.

Q. What part of your car did Mr. Brown’s ¹¹³ car strike? A. The front. Q. Head on? A. No, sir,