Barone v. Winebrenner

• Citation: 55 A.2d 505,189 Md. 142
• Decision Date: 03 November 1947
• Docket Number: 3.
• Parties: BARONE v. WINEBRENNER et ux.
• Court: Court of Appeals of Maryland

55 A.2d 505

189 Md. 142

BARONE v. WINEBRENNER et ux.

No. 3.

Court of Appeals of Maryland

November 3, 1947

Appeal from Circuit Court, Baltimore County; J. Howard Murray Judge.

Action by Marie Barone against William Winebrenner and Katherine M Winebrenner to recover for injuries sustained by plaintiff when struck by an automobile owned by defendant William Winebrenner, and driven by defendant Katherine M Winebrenner. Judgment for defendants and plaintiff appeals.

Affirmed.

Allan E. Cohan, of Baltimore, and Cornelius V. Roe of Towson, for appellant.

Robert H. Engle, of Baltimore (Michael Paul Smith, Roszel C. Thomsen and Clark, Thomsen & Smith, all of Baltimore, on the brief) for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

COLLINS Judge.

This is an appeal by Marie Barone, plaintiff below, from a judgment entered in favor of the defendants below, appellees here, William Winebrenner and Katherine M. Winebrenner, his wife.

Appellant claims that the trial judge erred in refusing her prayers as to the right-of-way of pedestrians and damages, because the verbal charge to the jury which intended to cover the law of the right-of-way of pedestrians did not do so, and because the verbal charge did not mention damages, a damage prayer having been offered by the plaintiff.

The appellant also contends that the trial judge should not have granted a directed verdict for the defendant, William Winebrenner, the owner of the automobile driven by his wife, Katherine M. Winebrenner, an exception having been taken by the appellant to the granting of this demurrer prayer.

Rule 6(c) and (d), Part III of the General Rules of Practice and Procedure, adopted by this court and effective September 1, 1941, provides:

'(c) Objections. Before the jury retires to consider its verdict, any party may object to any portion of any instruction given or to any omission therefrom or to the failure to give any instruction, stating distinctly the portion or omission or failure to instruct to which he objects and the specific grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

'(d) Appeal. Upon appeal a party, in assigning error in the instructions, shall be restricted to (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct distinctly objected to before the jury retired and (2) the specific grounds of objection distinctly stated at that time; and no other errors or assignments of error in the instructions shall be considered by the Court of Appeals.' (Italics supplied here.) No objection was made by the plaintiff to the oral instructions of the trial judge to the jury until December 6, 1946, the verdict having been returned by the jury on October 22, 1946, and judgment entered the same day.

Rule 6, supra, provides in part:

'(b) Instructions. In its instructions to the jury, which may be given either orally or in writing or both, the Court, in its discretion,

'(1) may instruct the jury upon the law of the case, either by granting requested instructions or by giving instructions of its own on particular issues or on the case as a whole, or by several or all of these methods, but need not grant any requested instruction if the matter is fairly covered by instructions actually given.'

In the case now before this court the trial judge refused prayers five and six of the defendant, Katherine M. Winebrenner, and granted exceptions to that refusal. He did not in terms grant or refuse the remaining prayers of the defendant or any of the plaintiff's prayers. He intended to incorporate the law of the case in an oral instruction to the jury. As we have said, plaintiff did not object to the charge as failing adequately to incorporate any of her prayers.

The purpose, of course, in requiring exceptions to be made to the instructions of the trial judge before the jury retires is to give that judge an opportunity to correct or add to his instructions matters either first erroneously stated or omitted. The court's charge to the jury should properly state the law of the case. Feinglos v. Weiner, 181 Md. 38, 47, 28 A.2d 577. No particular form is prescribed as to the manner in which the...