Brotman v. McNamara

Decision Date07 December 1942
Docket Number58-60.
Citation29 A.2d 264,181 Md. 224
CourtMaryland Court of Appeals
Dissenting Opinion Filed December 11, 1942.

Rehearing Denied Feb. 17, 1943.

Appeals from Superior Court of Baltimore City; J. Craig McLanahan Judge.

Action by Arthur R. McNamara, on his own behalf and to the use of Royal Indemnity Company, against Morton Brotman, trading as the Diamond Cab Company. By leave of court the defendant, as third party plaintiff, filed a cross-complaint against Jacob Levin, Benjamin Levin and Merrill Eppes as third party defendants. Verdicts were directed for the third party defendants, and the jury returned a verdict for the plaintiff against the defendant. From the three judgments entered on these verdicts the defendant and third party plaintiff appeals.

Judgments affirmed.

MARBURY J., and BOND, C.J., dissenting.

Joseph Sherbow, of Baltimore (Paul L. Cordish and Solomon Liss, both of Baltimore, on the brief), for appellant.

Harry Troth Gross, of Baltimore (Campbell L. Stirling, of Baltimore, on the brief), for appellee McNamara.

Foster H. Fanseen and Philip S. Ball, both of Baltimore, for appellees Levin.

Harry K. Lott, of Baltimore, for appellee Eppes.



As a result of a collision on Park Heights Avenue in Baltimore City on November 5, 1941, at two-thirty o'clock P. M., suit was brought by the appellee, McNamara, against Brotman. After filing the general issue plea, Brotman filed a petition under Chapter 344 of the Acts of 1941 (adding Code 1939, art. 50, §§ 21-29), asking for leave to serve a summons on Eppes and Jacob Levin and Benjamin Levin. An order was passed granting the prayer of this petition and subsequently Brotman filed a pleading as third party plaintiff against the three defendants brought into the case on his petition, in which pleading it was alleged the third party defendants were solely responsible for the collision. To his pleading, each of the third party defendants filed the general issue plea.

By directed verdicts, the case was withdrawn from the consideration of the jury as to the third party defendants, and Brotman's motion for a directed verdict in his favor having been overruled, and the verdict being against him, he brings these appeals.

The collision occurred in the North lane of the thirty-six hundred block of Park Heights Avenue in Baltimore City. McNamara was driving a Ford Sedan in the North lane of the Avenue, following the automobile of Eppes. Ahead of both of them was the Levin truck, which had been parked parallel to the curb, but was being maneuvered out into traffic. When McNamara first saw the truck he was about one hundred feet to the rear of it and approximately one and one-half car lengths behind Eppes. The truck was then on an angle of about forty-five degrees with the curb and McNamara testified he thought there was insufficient room for the Eppes car to pass the truck in its then position, so he applied his brakes and reduced his speed, which was then about twenty miles per hour, at the same time signalling traffic behind him by extending his left arm out the window. McNamara testified he had his car under perfect control at all times and that his rear signal lights were in good condition just prior to the collision.

Eppes' car and the truck collided, but McNamara brought his car to a stop about four or five feet behind Eppes. The cab, owned by the appellant, then struck the back of McNamara's car, driving it forward into that of Eppes. In addition to damage to his automobile, McNamara claimed damages for personal injuries and loss of earnings.

Although Eppes testified there were two impacts against the rear of his car after he struck Levin's truck, Jacob Levin, the truck driver, testified he was sure the Eppes and McNamara cars did not touch each other until the cab collided with the latter. The operator of the taxi cab did not testify.

The appellant has abandoned all but his 8, 9, 10, 11, 12, 13, 14, 15, 18 and 19 exceptions and all of these relate to the prayers and the oral instructions given by the Court. The 8th and 9th relate to the directed verdict in favor of the Levins and the 10, 11 and 12 to like action as to Eppes.

The appellant argues that the plaintiff was permitted to choose the defendant he wanted to hold and by limiting his testimony to that defendant, has defeated the purpose of the Uniform Contribution among the Joint Tortfeasors Act, which is Chapter 344 of the Acts of 1941. We do not agree with appellant's contention that the purpose of the Act has been defeated in this case. By Section 27(a) thereof, it is provided:

'Before answering, a defendant seeking contribution in a tort action may move ex parte or, after answering, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and pleading upon a person not a party to the action who is or may be liable as a joint tortfeasor to him or to the plaintiff for all or part of the plaintiff's claim against him. If the motion is granted and the summons and pleading are served, the person so served, hereinafter call the third-party defendant, shall make his defense to the claim of the plaintiff and to the third-party claim in the same manner as defenses are made by an original defendant to an original pleading. The third-party defendant may assert any defenses which the third-party plaintiff has to the plaintiff's claim. The plaintiff shall amend his pleadings to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant. The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff as well as of his own liability to the plaintiff and to the third-party plaintiff. A third-party defendant may proceed under this section against any person not a party to the action who is or may be liable as a joint tortfeasor to him or to the third-party plaintiff for all or part of the claim made in the action against the third-party defendant.'

Adequate provision is made by Section 27(a) for the trial of a case fairly and fully on its merits, without regard to the position of any of the parties as original defendants or otherwise. If the plaintiff limited his testimony to one defendant only, the one so implicated is certainly given every opportunity to make his defense and show that others are either jointly or solely liable. The appellant brought in the other defendants and the case was heard fully on its merits. That is the purpose at which the Act was aimed and we cannot say it was not accomplished in the case on this record.

There was no error in directing a verdict for Eppes and the Levins. McNamara testified he saw Levin's truck ready to leave the curb when he was approximately one hundred feet to its rear, that he then applied his brakes and reduced his speed under the twenty miles per hour he was then traveling. In that situation he had ample opportunity to avoid a collision with either Eppes or Levin and the Court's action in directing a verdict in their favor was proper.

The thirteenth exception is to the refusal of the Court to direct a verdict in favor of the appellant. The motion for the directed verdict was based on the legal insufficiency of the evidence, contributory negligence on the part of the plaintiff, and negligence of the Levins as the proximate cause of the accident. The evidence involving the appellant was ample to require its submission to the jury and there was no error in the ruling.

The 14th and 15th exceptions may be considered together, as both relate to the refusal to grant prayers offered by the appellant. Everything contained in these prayers was fully covered by the Court's oral instructions and the refusal of the prayers, as offered, does not constitute error. Rule 6, Rules of Practice and Procedure, of the Court of Appeals of Md. Feinglos v. Weiner, Md., 28 A.2d 577.

The 18th and 19th exceptions relate to refusal of the Court to instruct the jury in connection with the question of proximate cause as it related to the liability of Eppes and the Levins, but as the verdict in their favor was properly directed, no error is found in this ruling.

It is suggested by the appellees, Jacob Levin and Benjamin Levin, that a directed verdict in their favor was a necessity because no judgment could be rendered against them for the reason that the original plaintiff did not amend his declaration in accordance with Section 27(a) of the Act. Inasmuch as the action of the Court in directing a verdict for these appellees has already been approved, it becomes unnecessary for us to consider this question.

Finding no errors in the rulings complained of, the judgments are affirmed.

Judgment in No. 58 affirmed, with costs.

Judgment in No 59 affirmed, with costs.

Judgment in No. 60 affirmed, with costs.

MARBURY Judge (dissenting).

This is a personal injury case growing out of an automobile accident brought in the first instance by Arthur R. McNamara on his own behalf and for the use of the Royal Indemnity Co. ...

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