Butler v. Reed-Avery Co.

• Decision Date: 23 July 1946
• Docket Number: 158.
• Parties: BUTLER v. REED-AVERY CO.
• Court: Maryland Court of Appeals

48 A.2d 436

186 Md. 686

BUTLER v. REED-AVERY CO.

No. 158.

Court of Appeals of Maryland

July 23, 1946

Appeal from Superior Court of Baltimore City; John T. Tucker, Judge.

Action by Louis H. Butler against the Reed-Avery Company for personal injuries sustained by plaintiff when he fell into a dangerous chemical which allegedly flowed from defendant's plant and accumulated in street. From a judgment for defendant, the plaintiff appeals.

Judgment affirmed.

Murray MacNabb, of Baltimore (Anne Ewell, of Baltimore, on the brief), for appellant.

Paul M Higinbotham and Samuel K. Dennis, both of Baltimore, on the brief, for appellee.

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

GRASON Judge.

Louis H. Butler, appellant, started to walk from his home, shortly after midnight on the morning of March 3, 1944, to the Federal Yeast Company, for the purpose of applying for work. On his way he traveled over Ralls Avenue (which is also known as Rails Avenue and Railroad Avenue) and while walking along that avenue he fell into a 'dangerous chemical,' which flowed from appellee's plant 'as a waste product into said Ralls Avenue' and accumulated 'in said Avenue at a point 100 to 200 feet northwest from the intersection of said Ralls Avenue and Cleveland Street,' which badly burned him, and caused him to suffer great pain and injury of a permanent character.

He charges that appellee operates a factory at or near Ralls Avenue, where it manufactures products used in connection with welding. In the course of the process in manufacturing its products it uses a chemical, and refuse was discharged from the factory of appellee in such a manner as to drain down across Ralls Avenue and collect therein, and it was this refuse, charged with a chemical substance, which flowed into and settled on Ralls Avenue, into which he fell and was injured. He instituted suit for damages, in the Superior Court of Baltimore City, and his amended declaration set out substantially what we have above detailed.

After some preliminary procedure, appellee filed the general issue plea and the case came on for trial on November 26, 1945. At the conclusion of appellant's testimony the court directed the jury to find its verdict for the defendant (appellee). On November 30, 1945, judgment on verdict was made absolute in favor of the defendant for costs, and from this judgment, on December 28, 1945, appellant filed his order for appeal. On March 15, 1946, this court passed an order extending the time for the appellant for filing transcript of record in this court to March 20, 1946, and the record was accordingly filed on that date in this court. The record made up by the clerk of the court below included a part of the pleadings and all of the testimony of the witnesses as stenographically reported in question and answer form, and contains two hundred and twenty-five pages. On March 22, 1946, counsel for appellant submitted to attorneys for appellee testimony in narrative form offered on behalf of appellant in the trial of the case below, although the record in the case was sent to this court on March 20, 1946. On March 27, 1946, counsel for appellee advised counsel for appellant that it objected to the narrative form of the testimony proposed to be printed as a part of the record in this case, and stated if the narrative form of the testimony proposed had been seasonably submitted it would have been objected to by counsel for appellee. Notwithstanding the objection to the proposed narrative form of the testimony, appellant did not make any change therein and printed the same as the appendix to his brief. A motion to dismiss the appeal was filed by appellee.

The rules of this court require that an appellant shall promptly after he enters an appeal, serve upon appellee a designation of the portions of the record, proceedings and evidence to be contained in the record, and within ten days thereafter appellee may file a designation of additional portions of the record, proceedings and evidence to be included. The appellant is required to furnish appellee with a statement of the parts of the record he proposes to put in his brief within ten days after the filing of the transcript of the record in this court, which record must be filed in this court within sixty days from the time the appeal is taken. Appellant may prepare and file with his designation a condensed statement in narrative form of all or part of the testimony, but if appellee is dissatisfied with the narrative statement he may require testimony in question and answer form to be substituted therefor. A brief must contain an appendix thereto which shall contain such parts of the record which it is desired to be read by this court. The appellant may file a reply brief and set forth in an appendix thereto such part of the record he may wish the court to read in view of the parts printed by appellee. See Sec. 1, paragraph (e), Sec. 2, Sec. 3, paragraph (c), Sec. 4 of Rule 39; Rules 1, 18 and 19 of this court.

These rules were in force at the time the appellant filed his order for an appeal to this court. They are plain, concise, and should be easily understood. They provide a means for each side to get before this court all the evidence that it is desired to be read by the court. When the appellant disregards or violates these rules his case may be dismissed on motion, or by this court on its own motion.

It is clear from the record in this case that the appellant did not promptly, after the appeal was taken, serve on the appellee the portions of the record, proceedings and testimony to be contained in the record to be transmitted to this court. The record in this case contains all of the testimony taken at the trial of the case below. On March 22, 1946, after the record had been received in this court, the attorney for appellant submitted to attorneys for appellee a copy of the narrative form of testimony offered on behalf of appellant in the trial of the case. This was almost three months from the time the appeal was taken from the judgment below, and it would seem to be trifling with the court to contend that appellant acted promptly in the matter. The appellant's narrative form of the testimony having been objected to by appellee, he was required to reduce the testimony he desired the court to read to question and answer form. This he did not do, but filed the narrative form of testimony in the appendix to his brief, which had been objected by the appellee. The appellee contends that this narrative form of the testimony is incorrect, unfair, and does not contain a full disclosure of the facts as presented to the court below. However this may be, the appellant has failed to comply with the rules of this court and his appeal might well be dismissed.

For a full discussion of this matter see the opinion of Chief Judge Marbury, in Strohecker v. Schumacher & Seiler, Md., 43 A.2d 208. Full warning was given in that opinion of what would be done in the future when the rules of this court are violated. And in the case of Condry v. Laurie, Md., 46 A.2d 196, Judge Collins discussed the matter at some length, and repeated the warning given by Judge Marbury in the opinion in the case referred to.

The most important point in the case at bar, like the Strohecker case, is whether the evidence was legally sufficient to take the case to the jury. Appellant did not print, in the appendix to his brief, the testimony he desires the court to read, and his narrative form of the testimony was seasonably objected to by the appellee, and this objection required him to set out in the appendix to his brief, in question and answer form, the testimony he desired the court to read. This he did not do and we cannot consider the narrative form of the testimony contained in the appendix to appellant's brief. Neither can we take for facts what is set out in the appellant's brief because they are stated as an advocate would state a case before a jury, and its references to the narrative form of testimony cannot be considered. Certain objections to the court's ruling on evidence are referred to in the appellant's brief, and references in regard thereto are made to its appendix, which cannot be considered. A statement of Dr. Miller, which was offered in evidence by appellant and rejected by the court, is referred to, and appellant said that he offered to eliminate the objectionable parts, which was not permitted, and that he was obliged, by reason of this, to offer the testimony of another doctor who had been called by the defendant in pre-trial depositions. From this general statement in the brief, it would be impossible for us to say that the court committed error. There is nothing, therefore, in the appellant's brief that would require a reversal in this case.

Appellee printed parts of the testimony of the appellant, given in the case below, as an appendix to his brief. From this evidence, it appears from appellant's testimony, that the night in question was a cloudy, stormy and rainy night, and he said he 'would know just what happened all right, but, anyhow, I woke up in the hospital the next morning.' He said he either slipped or tripped and fell.

'Q. Well, did you fall into anything? What did you fall into? A. Well, when a man does that, he can't turn around and tell somebody what he fell into.

'Q. Do you know how far you had gone on this Ralls avenue before you had this accident? A. Well, it being a dark night--I know, naturally, being a human being, I would know just about where I went to, you understand. It was right on behind the Reed-Avery Company. Right in behind there.'

He was asked to state what happened to him and he answered: 'I either slipped or tripped, and I went into a unlevel place...