Brooks v. Daley

• Decision Date: 05 April 1966
• Docket Number: No. 132,132
• Citation: 218 A.2d 184,242 Md. 185
• Parties: Clarence BROOKS v. Miles Ferris DALEY et al.
• Court: Maryland Court of Appeals

Page 185

242 Md. 185

218 A.2d 184

Clarence BROOKS v. Miles Ferris DALEY et al.

No. 132.

Court of Appeals of Maryland.

April 5, 1966.

Howard J. McGrath, Mt. Rainier (Thomas J. Scanlon, Mt. Rainier, on the brief), for appellant.

Edward P. Camus, Riverdale (Hal C. B. Clagett, Upper Marlboro, on the brief), for appellees.

Before HAMMOND, HORNEY, MARBURY, BARNES and McWILLIAMS, JJ.

BARNES, Judge.

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff-appellee, Miles Ferris Daley, and also in favor of the third-party defendant-appellee, Mary E. Schaaf. Daley sought damages for personal injuries arising from a chain-type automobile accident. Daley's automobile was struck from behind by a vehicle operated by Mrs. Schaaf. A car driven by the defendant-appellant, Clarence Brooks, struck the rear of Mrs. Schaaf's automobile which in turn struck the rear of Daley's car a second time.

Daley filed two actions in the Circuit Court for Prince George's County for personal injury damages-Law No. 22,527 against Mrs. Schaaf as defendant and Law No. 22,528 against Mr. Brooks. The two cases were consolidated for trial; however, Mrs. Schaaf settled Law No. 22,527 with Daley and an order of satisfaction was filed on the day of trial entering the case against Mrs. Schaaf as settled, dismissed and satisfied. Law No. 22,528 against Mr. Brooks came on for trial before Judge Loveless and a jury with Mrs. Schaaf impleaded as a third-party defendant on a claim for contribution, if a judgment was entered against Brooks. The trial court refused to allow any evidence of the settlement in Law No. 22,527 to be presented to the jury at the trial of Law No. 22,528.

At the trial, Daley claimed that all of his injuries were caused by Brooks, i.e. he was injured not upon the first impact when Mrs. Schaaf's automobile struck the rear of his car, but upon the second impact when Mrs. Schaaf's automobile was struck by Brooks' car and driven again into the rear of the Daley vehicle.

Upon cross-examination, Brooks' attorney attempted to impeach Daley's credibility by confronting him with answers he made to interrogatories propounded by counsel for Mrs. Schaaf in Law No. 22,527 in which Daley listed as against Mrs. Schaaf the same damages he claimed at the trial against Brooks. Counsel for Brooks and Mrs. Schaaf took a consolidated deposition of Daley and in answer to the question 'What injuries did you receive as a result of the first impact?', Daley stated:

'I received a neck injury. I cannot say, and I don't believe a doctor can either, whether it was from the first or second impact that caused it.'

This answer to the question in the deposition was also admitted into evidence at the trial in order to point out the inconsistent position taken by Daley before trial as compared with his insistence at the trial that his injuries resulted from the second impact, i.e. Brooks' negligence rather than Mrs. Schaaf's.

Two eye-witnesses testified at the trial on behalf of Daley. Edward F. Davis, not a party to any of the law actions mentioned above, testified that he brought his car to a stop at a traffic light in front of Daley's automobile. Mrs. Schaaf's car then struck Daley's. Davis felt a 'slight jolt' which didn't move his car. The car behind him was pushed into his bumper. As Davis was alighting from his automobile after the first impact, he felt a 'terrific crash' and his car was 'jolted' forward into the rear of the car that had been stopped in front of him.

James E. Holson, who was not involved in the accident, was called as a witness for Daley and testified that he observed Mrs. Schaaf's car hit the Daley automobile, but 'it wasn't nothing to amount to anything'. Then, six to ten seconds later, the Brooks car 'came and plowed in and hit into the back of her (Mrs. Schaaf)'. The Brooks car was 'going very fast.' Photographs of Daley's car showed it to be totally demolished as a result of the accident.

Dr. Charles Farwell, the treating physician for Daley, was called as a plaintiff's witness. He testified that Daley, in giving him the history of the accident, stated 'he was stopped and his car was struck from the rear and shortly thereafter struck again, and the second impact was much worse * * *.'

Brooks called no witnesses; but he testified on his own behalf and stated that although he struck the rear of Mrs. Schaaf's car, the front of her car did not touch the rear of Daley's automobile. Brooks' testimony was contradicted by the eye-witness account of Mr. Davis, who testified for Daley.

At the close of the plaintiff's case, Brooks moved for a directed verdict 'on the ground that there was no showing of proximate cause of the injuries resulting from an accident by Mr. Brooks.' This motion was denied by the trial court. The motion was renewed by Brooks at the conclusion of the trial and was again denied. The jury, after considering the case, returned its verdict for Daley and against Brooks. When questioned concerning a verdict against Mrs. Schaaf the foreman stated that all liabilities were assessed against the defendant Brooks and no liability was found as against the third-party defendant, Mrs. Schaaf.

Brooks asserts numerous contentions on this appeal. They are as follows:

I. The trial court erred in denying Brooks' motion for a directed verdict since there was insufficient evidence to go to the jury on the question of whether Daley's injuries were proximately caused by the negligence of the defendant Brooks;

II. The trial court erred in denying Brooks' request for a continuance at the commencement of the trial so that he could obtain a copy of the order of satisfaction filed in Law No. 22,527 and 'determine the legal effect' of the document 'for use in the trial' of the case;

III. The trial court erred in refusing to allow any evidence of the settlement in Law No. 22,527 to be presented to the jury, since Brooks sought to introduce evidence of the settlement for the purpose of impeaching the credibility of Daley's testimony by showing that the settlement of Law No. 22,527 caused Daley to change his account from that given in the deposition to testimony exonerating Mrs. Schaaf and suggesting that Brooks alone caused all of his injuries;

IV. The trial court erred in omitting from its charge to the jury an instruction requested by Brooks' counsel, 'that where there is a party to an action in this case, such as Mrs. Schaaf, who was present at the scene of the accident and could give testimony as to the happening of the accident and has failed to appear in Court to give such evidence, there is a presumption that such evidence, which she would give, would be unfavorable';

The defendant Brooks was prejudiced and entitled to a mistrial because of the cumulative effect of improper comments made by plaintiff's witnesses and counsel for the third-party defendant, Mrs. Schaaf.

We find that none of these contentions justifies a reversal of the judgment entered in the lower court.

I.

Counsel for defendant Brooks moved for a directed verdict on the ground that there had been no showing of credible or substantial evidence that the injuries complained of were caused by the second impact and that the only testimony substantiating the claim that Brooks' negligence was the proximate cause of Daley's injuries was that of Daley himself. Brooks argues that Daley's testimony was impeached and rendered ineffective on cross-examination because of Daley's answers to questions propounded in a pre-trial deposition in which he stated that he did not know whether his injuries were caused by the first or second impact. The appellant urges us to apply the rule that if a witness says in one breath a thing is so and in another breath that it is not so, then his testimony is too contradictory to have any probative value and a jury will not be allowed to speculate as to which version of the witness' testimony to select as being true. See Kucharczyk v. State, 235 Md. 334, 201 A.2d 683 (1964).

We have held many times, however, that the rule divesting inconsistent testimony of any probative weight applies only to the testimony of a witness given at the trial; and the rule is inapplicable if his testimony conflicts with statements made before trial, or at another trial or other legal proceeding. Dayton v. Davis, 218 Md. 614, 147 A.2d 699 (1959); Bond v. Forthuber, 198 Md. 476, 84 A.2d 886 (1951); Baltimore Transit Co. v. State for Use of Castranda, 194 Md. 421, 71 A.2d 442 (1950); Foble v. Knefely, 176 Md. 474, 6 A.2d 48, 122 A.L.R. 831 (1939). In two previous cases we specifically held that if 'inconsistency appears between statements in a pre-trial deposition and testimony at the trial, the weight and credibility of the testimony are for the jury.' Safeway Trails, Inc. v. Smith, 222 Md. 206, 215, 159 A.2d 823, 828 (1960); Campbell v. State, 203 Md. 338, 100 A.2d 798 (1953).

In addition to Daley's testimony that his injuries were the result of the second impact caused by the defendant Brooks, the jury could have considered the testimony of Mr. Davis and Mr. Holson to the effect that the force of the first impact was minimal and the second impact occurred with 'tremendous force'. In denying Brooks' motion for a directed verdict the trial court was passing on the legal sufficiency of the evidence. The court assumed the truth of the evidence and all its permissible inferences, most favorable to the plaintiff. We cannot say that the refusal to take the case away from the jury constituted reversible error. Delph v. Ammons, 239 Md. 662, 212 A.2d 504 (1965); Bond v. Forthuber, supra.

II and III.

Brooks was not prejudiced by the trial court's refusal to grant his request for a continuance in order to 'determine the legal effect' of the settlement 'for use in the trial' of Law No. 22,528. Brooks contends that he should have been allowed to plead the release and the consideration paid to purchase it in order to reduce the...