Bloom v. Graff

• Decision Date: 12 January 1949
• Docket Number: 48.
• Citation: Bloom v. Graff, 191 Md. 733, 63 A.2d 313 (Md. 1949)
• Parties: BLOOM et al. v. GRAFF et al.
• Court: Maryland Supreme Court

63 A.2d 313

191 Md. 733

BLOOM et al. v. GRAFF et al.

No. 48.

Court of Appeals of Maryland

January 12, 1949

Appeal from Superior Court of Baltimore City; J. Abner Sayler Judge.

Action by Nathan Bloom and Anna Bloom, trading as Madison Liquors against Theodore E. Graff, George M. Brune, Clyde Mills, and Carlisle Mills for property damage. From Judgment entered on the verdict for plaintiffs against defendants Clyde and Carlisle Mills and for defendants Theodore E. Graff and George M. Brune against the plaintiffs, plaintiffs appeal.

Judgment for Theodore E. Graff and George M. Brune affirmed. Judgment against Clyde Mills and Carlisle Mills in amount of $250 reversed, and judgment entered in favor of plaintiffs against defendants Clyde and Carlisle Mills in amount of $896.09.

Frederick Taylor and Allers & Cochran, all of Baltimore, for appellants.

Foster H. Fanseen, of Baltimore (William L. K. Barrett and Milton I. Vogelhut, both of Baltimore, on the brief), for appellees.

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

COLLINS Judge.

Nathan Bloom and Anna Bloom, trading as Madison Liquors, appellants, sued Theodore E. Graff, George M. Brune, Clyde Mills and Carlisle Mills, appellees, for damages in the Superior Court of Baltimore City.

The appellants on October 26, 1946, operated at 1501 East Madison Street, Baltimore, a package goods liquor store. On that date a taxicab, owned by appellee Theodore E. Graff and operated by appellee George M. Brune, was proceeding easterly on Madison Street in Baltimore. It collided with an automobile, owned by appellee Carlisle Mills and operated by appellee Clyde Mills, proceeding in a southerly direction on Caroline Street. As a result of this collision the taxicab crashed into the appellants' store causing damage to the merchandise therein. Hence this suit.

The case was tried before a jury which rendered a verdict in favor of the appellants against the appellees, Clyde and Carlisle Mills only, in the amount of $250.00; and in favor of the appellees, Theodore E. Graff and George M. Brune, for costs of suit. From the judgment entered on that verdict the appellants appeal here.

In the instruction the trial judge told the jury, among other things: 'First, you can bring in a verdict in favor of both defendants, if you find primary negligence wasn't proven.' The appellants assign as error and except to that part of the instruction because they claim there was no indication in the case from any testimony that this was an unavoidable accident, but that the accident was one which must have been the fault of one defendant or the other or both of them. As the jury did not bring in a verdict for both defendants, but did bring in a verdict in favor of the appellants against the appellees, Clyde and Carlisle Mills, if there was error in this instruction, the appellants were not harmed thereby and it is therefore unnecessary that we pass upon that exception to the instruction. The judgment in favor of the appellees, Theodore E. Graff and George M. Brune, for costs of suit, will therefore be affirmed.

The only other error alleged in the trial of this case is another part of the instruction given the jury by the trial judge. During the trial of the case against all appellees, the attorney for the appellants, plaintiffs, stated in open court: 'Your Honor please, before putting my first witness on, I would like to state it is stipulated and agreed between counsel for the parties to this case that if a verdict is found in favor of the plaintiff it should be in the amount of $896.09.' The attorney for appellees Graff and Brune then asked, 'What's the nine cents for?' to which inquiry the attorney for the plaintiff answered, 'That was a small bottle.' No comment was made by the attorney for the appellees, Clyde and Carlisle Mills. The case proceeded and witnesses were called and examined. At the conclusion of the case and in the instruction to the jury the trial judge made the following statement; 'They have agreed that if a witness were produced to testify as to the plaintiffs' damages that witness would testify that the damage suffered was $896.09. $896.09. You don't have to believe that. If you want to find for the plaintiffs you don't have to bring in a verdict of $896.09. The plaintiffs say that's the amount, and the defendants admit that if the witness were produced...