Cavey v. Srnec, 195
| Decision Date | 13 January 1970 |
| Docket Number | No. 195,195 |
| Citation | 260 A.2d 292,256 Md. 483 |
| Parties | Katherine E. CAVEY et al., v. Ernest SRNEC. |
| Court | Maryland Court of Appeals |
Joseph P. Rieger, Baltimore (Joseph W. Spector and Spector, Lembach & Rieger, Baltimore, on the brief), for appellants.
No brief filed on behalf of appellee.
Before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY and DIGGES, JJ.
This oddity comes to us by way of the Superior Court of Baltimore City. On 8 September 1967 the appellee (Srnec) barged into the left rear of Katherine Cavey's car. Both were westbound on Franklin Street. In late May 1968 she and her husband, Robert, filed suit against Srnec. In the 'first cause of action' Katherine claimed $50,000 for her 'physical pain and mental anguish;' in the 'second cause of action' Robert claimed $10,000 for the loss of Katherine's services and medical expenses incurred as a result of her injury; in the 'third cause of action' both Katherine and Robert claimed $20,000 for the 'loss of consortium.' The case came on for trial in March 1969 before Cullen, J., and a jury. According to the docket entries the trial ended in a 'Verdict in favor of * * * (Katherine) for the sum of $200 and in favor of * * * (Robert) for the sum of $400 and costs.' On the same day, 27 March, 'Judgments on Verdicts Nisi' were entered.
On the day following Katherine filed a motion for a new trial for the reason that the verdict in her favor represented only the 'fair value of her wages for loss of time' and gave no award 'whatever for pain and suffering.' In his supporting memorandum counsel for Katherine said, 'That she will have a 25% permanent disability to her cervical spine was never contradicted.' The docket entry for 1 April 1969 is as follows:
'Judgment absolute in favor of * * * (Robert) for the sum of $400 with interest and costs of suit.'
A few days short of two months later, 26 May, Judge Cullen sent to counsel the following letter:
'Gentlemen:
'The Court has given careful consideration to the Motion for New Trial filed in the above entitled cause.
'The decision on this Motion has been withheld hoping the parties could settle the matter between themselves, which apparently cannot be done.
'This Court will grant a new trial based on the fact that the amount of damages awarded by the jury were inconsistent with the verdict.
James K. Cullen'
The docket entry for 26 May shows '* * * (Katherine's) motion for new trial GRANTED (CULLEN, Judge).'
On 25 June counsel for Srnec filed the document set forth in full below:
'This Petition by Ernest Srnec, Defendant by James B. Wheatley, his attorney, respectfully states:
'1. The Court passed an order granting a new trial in this matter.
'2. Subsequent to the Order the Plaintiff, Robert Cavey has requested payment of the judgment rendered in his favor by the Jury, and the Plaintiff, KATHERINE E. CAVEY, has indicated the intention of having the New Trial based on the question of damages only.
'3. The Defendant believes that the question arises as to what issues and to what parties the new trial applies. Is it to be tried de novo on all issues as to all parties, or is it granted as to one Plaintiff alone, and on what issues? If it is not granted as to Robert Cavey, can the 'Third Cause of Action' in the Declaration be pursued?
'WHEREFORE, the Defendant requests that the Court pass an order clarifying its Order granting a New Trial, and that the Court Order such other and further relief for the Defendant as in the judgment of the Court may be proper.
James B. Wheatley,
Attorney for Defendant.'
On the same day, 25 June, Judge Cullen sent to counsel the following letter:
'Gentlemen:
'I can understand that there may be some confusion as to the action of the Court in granting a new trial in the above entitled cause.
'This Court believes, after examination of its notes, that the amount of damages awarded by the jury showed a lack of understanding of the issues involved in the case. The Court meant by its previous Order and does hereby grant a new trial (trial de novo) on all issues and as to all parties.
James K. Cullen'
The docket entries for 25 June are as follows:
'Defendant's Petition for Clarification of Issues to be determined at New Trial filed.'
Both the copy of the Petition for Clarification and the copy of Judge Cullen's letter were received the next day by counsel for the Caveys who, until then, had been unaware of either the petition or the letter.
Srnec filed neither a motion N.O.V. nor a motion for a new trial. His only response to the verdicts and Katherine's motion for a new trial was the 'petition for clarification.' In this Court, there is neither brief nor appearance for him. The transcript of the record contains neither the testimony of the witnesses nor the court's instructions to the jury.
Robert invites our attention to the absence of any allegation (or proof) of fraud, mistake or irregularity in the entry of his judgment. This being so, he argues that Judge Cullen had no power or authority to strike out his judgment, a necessary consequence of the granting of a new trial. That Robert is right requires only the citation of Maryland Rule 625; Hale v. Cramer, 254 Md. 592, 255 A.2d 37 (1969); Household Finance Corporation v. Taylor, 254 Md. 349, 254 A.2d 687 (1969); Himes v. Day, 254 Md. 197 (1969); Grantham v. Board of County Com'rs for Prince George's County, 251 Md. 28, 246 A.2d 548 (1968); and Murray v. Fishman Construction Company, Inc., 241 Md. 538, 217 A.2d 357 (1966).
Katherine's case points up some sticky problems in procedure. Rule 567 c empowers the court to grant a new trial in respect of any 'severable part of the matters in controversy, or only some or one of the parties' and to enter 'final judgment as to the remaining parts or parties.' While there seems to be no rule allowing the filing of a motion for a new trial limited to a single issue, e. g., damages, neither does there seem to be any restriction against so doing. But, as matters now stand, it is clear that such a motion does not limit the court's powers in this...
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Montgomery Ward & Co., Inc. v. Keulemans
...pursuant to that motion, combine to show that the grant of a new trial, was absolute and not partial in effect. Cf. Cavey v. Srnec, 256 Md. 483, 488, 260 A.2d 292, 294-95. The second trial properly was permitted to proceed against all of the subject Appellants next attack the judgments upon......
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Yiallouros v. Tolson
...of negligence, the court exercised its discretion to grant a new trial on both damages and liability. See Cavey v. Srnec, 256 Md. 483, 489, 260 A.2d 292 (1970) (where party had moved for new trial only as to damages, court had discretion “to grant a trial de novo, or to grant a new trial on......