Baltimore County v. Stitzel, No. 831

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Argued before THOMPSON and POWERS, JJ., and MARVIN H. SMITH; MARVIN H. SMITH
• Citation: 337 A.2d 721,26 Md.App. 175
• Decision Date: 07 May 1975
• Docket Number: No. 831
• Parties: BALTIMORE COUNTY, Maryland et al. v. Charles M. STITZEL et al.

Page 175

26 Md.App. 175 337 A.2d 721 BALTIMORE COUNTY, Maryland et al.
v.
Charles M. STITZEL et al. No. 831. Court of Special Appeals of Maryland. May 7, 1975.
Certiorari Denied Aug. 1, 1975.

[337 A.2d 723]

Page 176

W. Lee Harrison, Cooper Co. Graham, Towson, on the brief, for appellants.

Henry E. Dugan, Jr., Baltimore, and Daniel O'C. Tracy, Jr., Towson, Marvin Ellin, Jonathan Schochor, Baltimore, and James H. Cook, Towson, on the brief, for appellees.

Argued before THOMPSON and POWERS, JJ., and MARVIN H. SMITH, Judge of the Court of Appeals, specially assigned.

Page 177

MARVIN H. SMITH, Special Judge.

We shall here reverse so much of a judgment as was incorrectly entered on a third-party claim and otherwise affirm judgments entered after a new trial as the result of the decision of this court in Stitzel v. Kurz, 18 Md.App. 525, 308 A.2d 430 (1973).

This litigation arises from an accident on September 11, 1970, in which John M. Stitzel, a passenger in an automobile operated by John Leonard Kurz (Kurz), was killed when the vehicle went off of Joppa Road about 100 feet east of Kahl Avenue in Baltimore County. Suits against Kurz were filed by the surviving parents of young Stitzel and his estate (the Stitzels). Kurz impleaded Baltimore County (the County) as a third-party defendant, pursuant to the provisions of Maryland Rule 315. He alleged that the injuries and the resulting death of young Stitzel 'resulted from the negligence of Baltimore County . . . in its erection and maintenance (at the location of the accident) of a directional road sign, incorrectly designating to motorists approaching . . . at said point the direction in which said Joppa Road curves, (immediately beyond) the location of the sign . . ..' He prayed that judgment 'for any sums that (might) be adjudged to be due to the Plaintiffs' be entered against the County 'or in the alternative against Baltimore County, Maryland and . . . Kurz if the jury should find both of them liable . . ..' The Stitzels filed an amended declaration in which the County was brought in as a party defendant. No cross-claim under Rule 314 was filed by Kurz against the County.

The jury returned verdicts against Kurz and the County. Damages were assessed in the amount of $25,000 in favor of the parents and $12,000 in favor of the estate. After the trial court rejected motions made on behalf of the County for judgment n. o. v. or a new trial, judgments absolute in the amount of the jury verdict were entered in both instances against Kurz and the County. Within the 30 day period specified in Rule 1012, an appeal was entered by the County. Kurz moved in the trial court under Rule 1013 to dismiss the appeal. He contended that 'all of the claims for

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relief that were presented at the trial of the . . . action ha(d) not been adjudicated,' that there had been no express determination by the trial court directing the entry of a final judgment on less than all of the claims presented, and that under the provisions of Rule 605 a the appeal was premature, not being from a final judgment. Kurz also filed a motion in which he prayed that the court refer to the pleadings and issues and then 'mold the verdicts into proper shape by entering judgment in favor of the Third-Party Plaintiff, John Leonard Kurz, against Baltimore County, Maryland for one-half the judgment rendered by the jury' in each case. The following day the Stitzels filed a similar motion asking for entry of a judgment nunc pro tunc on the third-party claim. The County filed an answer intended to cover both motions. It claimed that the judgment 'was final and adjudicated fully the question of joint liability as to both of said claims set forth in the Amended Declaration against both Defendants and in the Third Party Complaint filed by the Defendant, Kurz, against the Third Party Defendant, Baltimore County.' It said 'that the verdicts in this case did conclude all of the issues by the Parties to said litigation and there (was) no necessity to mold or alter the verdicts or the docket entries,' since the jury 'passed upon the sole issue between the Parties under both the [337 A.2d 724] Amended Declaration against both Defendants and the Third Party Complaint by one Defendant against the other Defendant which was the issue of joint or several liability.' It contended that any judgment entered on the third-party complaint 'could not be in monetary form or by a stated amount as such would serve only to make the Defendant, Baltimore County . . . liable for all or part of the verdict returned against both Defendants, and, in addition thereto, render it liable to the Third Party Complainant for $18,500.' It said that 'the entry of any Order Nunc Pro Tunc (w)ould only serve to extend the appeal time after same ha(d) already expired' and that this was 'beyond the powers of (the trial court) under a ruling of the Maryland Court of Appeals in Lang v. Catterton, 267 Md. 268, 285 (, 297 A.2d 735 (1972)).'

The trial judge held a hearing on these motions. He

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granted the motion of Kurz to dismiss the appeal, ordered the original judgments stricken, and directed entry of judgments as originally entered and also in favor of the thrid-party plaintiff against the County for one-half of each of the judgments. A second timely appeal was then filed by the County. Kurz also appealed, although he has filed no brief in this court as appellant nor has he presented any contentions alleging error on the part of the trial court.

The County claims (1) that its 'motion for directed verdict . . . should have been granted,' (2) that 'the jury (should not) have been allowed to speculate as to the cause of the accident where there was no proof that the Appellant had been guilty of negligence,' and (3) that the trial court erred in striking the original judgments, dismissing the appeal filed on those judgments, and then entering new judgments.

i

Motion for Directed Verdict

It is conceded that the County replaced an erroneously erected curve sign at the location of the accident on October 5, 1970, a little more than three weeks after the accident. An individual living in close proximity to the sign testified that on the day of the accident the sign showed a curve to the right. It should have indicated a curve to the left. She said that prior to the date of the accident the sign had existed in this erroneous manner during the whole time that she had lived there, which was for a period of about eight years. The County days that 'her testimony was shown to be erroneous by the fact that the records of Baltimore County showed that the sign was changed in 1964 and 1968, and it was changed twice in 1970, so there had been at least four changes in the sign from 1962 to 1973 . . ..' It points to the safety precautions testified to by one of its employees and says that 'installing an incorrect sign once would be difficult, since it is necessary to check out the correct sign from the shop before the County engineers even reached the site. But to accomplish this feat four times bends the law of averages completely out of shape.' It then concludes that the

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neighbor 'was completely impeached by her own testimony and that of the County records, and the question of constructive notice (was) completely unproven.'

The court and jury had more before them than the testimony of this neighbor, however. The accident occurred late on Friday evening, September 11. Another neighbor testified that on the following Sunday he observed that the sign was in error. When pushed somewhat as to the fact that he had never made a complaint to responsible authorities relative to an incorrect sign, the record on...