Braun v. Ford Motor Co.

• Decision Date: 14 September 1976
• Docket Number: No. 939,939
• Citation: 32 Md.App. 545,363 A.2d 562
• Parties: Benjamin L. BRAUN et ux. v. FORD MOTOR COMPANY et al.
• Court: Court of Special Appeals of Maryland

Page 545

32 Md.App. 545

363 A.2d 562

Benjamin L. BRAUN et ux. v. FORD MOTOR COMPANY et al.

No. 939.

Court of Special Appeals of Maryland.

Sept. 14, 1976.

Certiorari Denied Dec. 6, 1976.

Sidney Kaplan, Baltimore, with whom was Arthur Guy Kaplan, Baltimore, on the brief, for appellants.

Robert E. Powell, Baltimore, with whom were M. King Hill, Jr. and Smith, Somerville & Case, Baltimore, on the brief for appellee, Ford Motor Co.

Stanley B. Rohd, with whom were Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief for other appellee.

Argued before MOYLAN, POWERS and MOORE, JJ.

POWERS, Judge.

Benjamin L. Braun and Phyllis W. Braun, his wife, filed suit in August 1971 in the Superior Court of Baltimore City against Ford Motor Company and against Tower Ford, Inc., a Baltimore dealer, claiming damages for injuries to Mrs. Braun. They alleged that on 4 October 1968 they had purchased from Tower Ford an automobile manufactured by Ford Motor Company. They also alleged, and the evidence at the trial of the case showed, that on 18 April 1969 Mrs. Braun was driving alone in the automobile in a northerly direction on Walther Boulevard in Baltimore when she lost control, collided with a parked automobile, and sustained injuries. It was alleged, and it was contended at the trial, that Mrs. Braun lost control of the automobile because of a defective part which caused it to accelerate improperly.

In the first count of the declaration Mrs. Braun sued both defendants on the theory of breach of warranty. In the second count she claimed against both upon allegations of negligence. In Counts III and IV, Mr. Braun claimed damages for medical and other expenses attributable to his wife's injuries, and for the loss of her services, upon the same theories of breach of warranty and of negligence.

Demurrers filed by Ford Motor Company to the two breach of warranty counts were sustained and are not involved in this appeal.

Trial was held before Judge James A. Perrott and a jury from the 6th to the 14th of November, 1975. At the conclusion of all of the evidence at the trial, the court granted a motion of Ford Motor Company for a directed verdict in its favor. The case went to the jury as to defendant Tower Ford, for a special verdict in the form of written findings upon issues of fact. Maryland Rule 560. The jury found by its answers that Tower Ford was not guilty of negligence; that Tower Ford breached a warranty to the plaintiffs and that such breach was a proximate cause of the accident; and that Phyllis W. Braun was guilty of contributory negligence which was a proximate cause of the accident. Because of its finding that Mrs. Braun was guilty of contributory negligence, the jury did not answer the issues relating to damages.

Each member of the jury was polled separately as to each of the three answers. Each agreed that his answers were as announced, and the Clerk hearkened them to their verdict as the court recorded it. The judge then asked: 'Therefore Ladies and Gentlemen, you find for the Defendant, is that correct?' The transcript records that the jury answered, 'Yes.' The docket entry shows each of the answers, and contains these further entries:

'Verdict in favor of Defendant, Tower Ford, Inc. for costs.'

'Judgment on Verdict Nisi.'

A motion timely filed by Mr. and Mrs. Braun for a new trial was heard on 6 June 1975 and was denied. On the same day judgment absolute was entered in favor of both defendants for costs. This appeal followed.

The contentions made by the appellants in this Court fall into two separate categories. In the first category, the one upon which appellants principally rely, they pose four questions. Three of them relate to alleged improper conduct by members of the jury in the jury room, and one relates to the qualifications of a juror. In the other category, appellants contend that the trial court erred in granting Ford Motor Company's motion for a directed verdict.

Nowhere in their brief do appellants contend that the trial judge erred or abused his discretion in denying their motion for a new trial. In fact, in response to a motion filed in this Court relating to the adequacy of their record extract, they state:

'Appellees state the Appellant omitted the transcript of the oral ruling of the Lower Court with reference to their Motion for New Trial. The Appellant is not appealing from the denial of the Motion for a New Trial, but is instead appealing from improper juror conduct and for this reason omitted argument and decision with reference to the new trial which the Appellant believes is not an appealable issue.'

With the exception of a bare statement that the jury's verdict was contrary to the evidence, appellants' motion for new trial was, however, confined exclusively to allegations of improper conduct by members of the jury.

Perhaps the relative functions of appellate courts and trial courts in our system of justice should be more clearly understood. In trial courts, it is the function of the judge to preside over the trial, to direct the course of the proceedings, and to make all rulings on legal questions raised before him at any stage of the case. In a jury trial, the fact finding function is, of course, committed exclusively to the jury, but it remains the duty of the judge to insure that as to all parties concerned the trial is fair, and conducted according to established procedure, to the end that equal justice is afforded to all. Recognizing that judges, being human, may err, the system provides a right of appeal, so that any party who feels he has suffered an injustice flowing from an error by a trial judge, may have the question reconsidered by other judges.

We know of no principle or practice under which a judgment of a trial court may be reversed or modified on appeal except for prejudicial error committed by the trial judge. It is a misuse of language to label as error any act or failure to act by a party, an attorney, a witness, a juror, or by anyone else other than the judge. In other words, error in a trial court may be committed only by a judge, and only when he rules, or, in rare instances, fails to rule, on a question raised before him in the course of a trial, or in pre-trial or post-trial proceedings. Appellate courts look only to the rulings made by a trial judge, or to his failure to act when action was required, to find reversible error.

This philosophy finds expression throughout the appellate process and specifically in Maryland Rules 885 and 1085, which provide that the appellate courts will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court, and further by the judicially expressed rule that the appellate courts will consider only contentions raised and argued in the briefs. See Fidelity & Deposit Co. v. Mattingly Lumber Co., 176 Md. 217, 4 A.2d 447 (1939); Harmon v. State Roads Comm., 242 Md. 24, 217 A.2d 513 (1966); Ricker v. Abrams, 263 Md. 509, 283 A.2d 583 (1971).

One more comment is appropriate. An appeal may be taken, ordinarily, only from a final judgment ¹ of a trial court. Code, Courts Art. § 12-301. Orders, rulings, even verdicts, do no harm to a litigant unless they lead up to a final judgment which does him harm. So it is on appeal from the final judgment that appellant has the opportunity to show that the judgment resulted from error by the judge in the trial court.

Appellee Tower Ford, Inc. correctly, we believe, states the question presented as, 'Did the court err in refusing to grant a new trial on the grounds of jury misconduct during deliberations?' Accordingly, and because we could not properly entertain the question any other way, we will consider the arguments of the appellants with respect to alleged improper conduct by the jury as a contention that the final judgment was wrong because the trial judge abused his discretion in denying their motion for a new trial.

We shall not analyze or discuss in detail the factual basis for the contention that there was improper conduct by the members of the jury. A brief statement will suffice. During the evening after the jury returned its verdict, counsel for appellants telephoned several of the jurors at their homes. He talked with five of the jurors about the case and its result. He reported to Judge Perrott the next morning that he had developed information which he felt showed misconduct. In the presence of counsel for appellants and of counsel for appellee Tower Ford, Judge Perrott questioned each of six jurors, separately, and gave counsel an opportunity to question them. The entire proceeding was transcribed.

The first point developed was that one of the jurors, who had worked in a doctor's office, had in her pocketbook in the jury room a clipping of a newspaper article reporting a recent seminar discussion in Detroit on the subject of emotional stresses of women during menopause, and their symptoms. A few of the other jurors saw the article, or heard it discussed, while they were in the jury room.

Appellants argue that this was improper, because of the nature of the injuries claimed by Mrs. Braun. Except for relatively minor physical injuries for which Mrs. Braun received first aid and brief follow-up care, the injury claimed to have been caused by the accident was described as a severe personality disorder, or neurosis. The only medical witness was a psychiatrist, whom she saw twice; the first time on 18 March 1972, almost three years after the accident, and the second time in October 1974, shortly before the trial. The doctor said that he or his associates saw Mrs. Braun a total of seven times, and rendered psychiatric out-patient care. He said that they were not very successful.

The contention is that the similarity between the emotional symptoms of some women in menopause, and the symptoms described by Mrs. Braun, and by her psychiatrist and by her family, impaired...