B.J. Linthicum's Sons, Inc. v. Stack, 194

• Decision Date: 10 May 1957
• Docket Number: No. 194,194
• Citation: 131 A.2d 721,213 Md. 344
• Parties: B. J. LINTHICUM'S SONS, Inc., etc., et al. v. Ruth N. STACK.
• Court: Maryland Court of Appeals

Page 344

213 Md. 344

131 A.2d 721

B. J. LINTHICUM'S SONS, Inc., etc., et al. v. Ruth N. STACK.

No. 194.

Court of Appeals of Maryland.

May 10, 1957.

Jeffrey B. Smith, Baltimore, and William W. Travers, Salisbury (R. Roger Drechsler, Baltimore, on the brief), for appellants.

Emerson C. Harrington, Jr. and Franklin S. Tyng, Cambridge, for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

HENDERSON, Judge.

We advanced this case for hearing upon a motion to dismiss the appeal, but at the hearing of the motion both sides agreed to submit the case on the merits and we heard arguments both on the motion and on the merits. The only questions raised are whether the motion to dismiss should be granted, and, if not, whether the trial court erred in refusing to set aside the verdict and to grant a new trial.

There is little dispute as to the facts. The appellee brought an action for negligence against the appellants on August 31, 1956, in the Circuit Court for Dorchester County. The defendants were summoned, communicated with their insurance carrier in Baltimore, and on September 17, 1956, general issue pleas were filed by Jeffrey B. Smith, a Baltimore attorney representing the insurance carrier. The paper contained his Baltimore address, but he did not file the usual order directing the clerk to enter his appearance, nor did he employ local counsel or discuss the case with the defendants in person. The case being at issue at the beginning of the October term of court, a preliminary call of the trial docket was held on October 11, 1956. No counsel appeared for the defendants at that call, but the court directed the clerk to enter Mr. Smith's appearance on the docket, although the docket entries do not contain such notation. The case was reached for trial in regular course on October 24, 1956.

On October 18 or 19, 1956, the clerk put in a telephone call to Mr. Charles Linthicum and spoke to his secretary, as he was out. The secretary called Mr. Mills, the codefendant, to the phone and the clerk informed him that the case would be in the assignment on the 24th. She told him, 'I don't have any attorney to notify'. Mr. Mills told her, 'We have attorneys in Baltimore' and said: 'I will call him immediately on the telephone.' Mr. Mills did call the insurance carrier in Baltimore, but apparently Mr. Smith did not receive the message. When the case was called for trial on October 24, 1956, no one appeared on behalf of the defendants. When the court was informed that the defendants had been notified of the trial date, the plaintiff put on her case before a jury and there was a verdict for the plaintiff. It was shown that the plaintiff sustained a serious and permanent injury to her hand when the defendants' salesman, Mr. Mills, in demonstrating an automobile, had slammed a door upon her hand. On the following day, Mr. Smith filed a motion to set aside the verdict and for a new trial. The motion came on for hearing on November 15, 1956, and was denied. This appeal is from the judgment entered on that date.

The ground of the motion to dismiss is that no appeal lies from a denial of a motion for a new trial. It is well settled that this Court cannot review the ruling of a trial court on a motion for a new trial. Snyder v. Cearfoss, 186 Md. 360, 367, 46 A.2d 607. The only exception to the rule that appears in the adjudicated cases, is where the trial court refused to even consider newly discovered evidence, and this was dealt with as an abuse of discretion. See Washington, B. & A. E. R. Co. v. Kimmey, 141 Md. 243, 118 A. 648. In Phoebus v. Sterling, 174 Md. 394, 396, 198 A. 717, it was held that a decision of the trial court in refusing a motion for new trial, based on the fact that the defendant had not appeared at the trial, of which he had notice, was not reviewable on appeal. In the instant case, however, the motion for a new trial was only...