Chesapeake & Potomac Tel. Co. of Maryland v. Hicks

• Decision Date: 04 April 1975
• Docket Number: No. 625,625
• Citation: 25 Md.App. 503,337 A.2d 744
• Parties: CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF MARYLAND v. Joseph H. HICKS.
• Court: Court of Special Appeals of Maryland

Page 503

25 Md.App. 503

337 A.2d 744

CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF MARYLAND v. Joseph H. HICKS.

No. 625.

Court of Special Appeals of Maryland.

April 4, 1975.

Certiorari Denied July 3, 1975.

Richard A. Reid, Towson, with whom were Royston, Mueller, Thomas & McLean, Towson, J. W. Sarver and James S. Hamasaki, Baltimore, on the brief, for appellant

John B. Jaske, Baltimore, with whom were James J. Doyle, Jr., Sherbow, Shea & Doyle, Baltimore, and James A. Pine, Towson, on the brief, for appellee.

Argued before ORTH, C. J. and MENCHINE and MOORE, JJ.

ORTH, Chief Judge.

The primal issue on this appeal is whether the doctrine of res ipsa loquitur arose upon the facts and circumstances of the case.

STATEMENT OF THE CASE

On 14 July 1972 Joseph H. Hicks filed a declaration in the Circuit Court for Baltimore County whereby he instituted an action in tort against Chesapeake and Potomac Telephone Company of Maryland (Telephone Co.) claiming $75,000 damages he suffered due to its negligence. On 22 August the issue was joined by the plea of the Telephone Co. that it did not commit the wrongs alleged. ¹ The action went to trial before a jury on 29 April 1974. At the close of evidence offered by Hicks, the

Telephone Co. moved for a directed verdict in its favor and the motion was denied. A motion for a directed verdict in its favor was again made by the Telephone Co. at the close of all the evidence and the court reserved its decision thereon until after the verdict of the jury. Maryland Rule 552. On 1 May the jury rendered a verdict in favor of Hicks and against the Telephone Co. for the sum of $26,635, interest and costs, and judgment was entered on verdict nisi causa. A motion by the Telephone Co. for judgment n. o. v. was filed on 6 May, ² heard on 28 May, and denied on 25 June 1974, upon which judgment absolute was entered. The Telephone Co. filed a timely order for appeal.

THE FACTS

We give a compendium of the evidence adduced at the trial.

On 11 March 1964 William L. Huber, who owned, in partnership with his sister, and operated the Last Chance Tavern at 3423 Eastern Boulevard in Baltimore County and the Telephone Co. entered into a contract whereby, in relevant part, the Telephone Co. agreed to 'install and maintain a public telephone station' in the nature of a 'Company Owned Booth' (as distinguished from a 'Customer Owned Booth') on Huber's premises to 'furnish service to the public thereat', and to pay Huber a commission of 15% on collections. Huber agreed to 'provide suitable and safe space for the facilities furnished and proper light therefor, (and) suitable and safe approach to and retirement from such space', to 'keep in a clean condition any booths furnished by Telephone Company', and to 'permit the public to use said facilities'. He agreed to A rough diagram of the scene was offered in evidence by the Telephone Co. and its counsel referred Hicks to it during the cross-examination of that witness. The transcript, time and again, read '(indicating)', but unfortunately, as is too often the case, counsel did not read into the record exactly what was being indicated, so we can only construe the 'indications' from the tenor of the questions and answers. The diagram bears no directional arrow but it appears that the Last Chance Tavern is located near the southwest corner of Eastern Boulevard and Carroll Island Road. It faces on Eastern Boulevard, set back about 30 feet, and is about 100 to 150 feet from Carroll Island Road. As one faces Eastern Boulevard, the entrance door to the Tavern is at the extreme right front of the building, and a sidewalk runs along the front and left side. The area between Eastern Boulevard and the Tavern and an area on the left side of the building has a crushed stone surface ('a crusher run') and is used for 'head-in parking of automobiles, accommodating in such manner a one car line. As one leaves the Tavern, looking toward Eastern Boulevard, the telephone booth, according to Hicks, 'is located on the left hand side, left hand front side of the bar just outside the door . . . sitting on the sidewalk.' It is in line with a telephone pole close by Eastern Boulevard in the front parking area. The booth was described by Hicks as 'a normal booth that you see outside along the road. It is red and aluminum. . . . It had a metal floor and it's just a normal phone booth.' When the Telephone Co. installed the booth it had an electrical contractor connect the necessary electrical lines. An invoice offered by the Telephone Co. showed that on 28 March 1964 the contractor 'Installed a 120-volt circuit to and connected same to the lights in outdoor phone booth, as per instructions by Mr. Joseph On 10 June 1970, about 9:30 A.M., Hicks, a Constable for the District Court of Maryland, went to a trailer park in the Middle River area of Baltimore County to serve an eviction notice. The address in the notice proved to be a vacant lot. He thought the address given was a clerical mistake and decided to telephone the Court to inquire about it. He was familiar with the telephone booth at the Last Chance Tavern and went there to make the call. He got change to deposit in the telephone from Huber. He described what happened. 'Well, when I went outside I had the change in my hand and I was reaching down to get two nickles to make the phone call and when I stepped into the phone booth, that quick, I got this terrific jolt and it either blowed me out or I stumbled out of or fell out of the phone booth and landed about ten to 15 feet from the phone booth', and 'directly in front' of it. He 'honestly and truthfully' did not know how he got to 10 to 15 feet from the booth, but he found himself lying on the ground on his left side, and he did not have his shoes on. John Haag, the bartender at the Last Chance, was reporting for work. Haag helped him up. Hicks testified: 'Well, I was shaken. I really didn't know how-it is hard to describe what went through you at the time. It was like a bolt or a hot chill went through you. I just can't find words to describe it. . . . I wasn't in any shape to get up.' Haag took him inside the Tavern. He felt 'shaken' and noticed that he was 'giddy-more dizzy than anything.' Haag brought him his shoes. Hicks told Huber, 'I don't know The Telephone Co. employee who arrived on the scene was Edmund Hohman, an installer-repairman. He had been dispatched to the Last Chance on information that 'a telephone booth was hot and that somebody had been shocked.' He investigated the booth. 'We have on our truck what we call a magic wand. It is a B voltage tester and it tells you if there is any foreign voltage or anything, trailers or phone booths, and I used this to test the booth and it lit up, which indicates that there is voltage on it.' He went immediately into the Tavern, determined where the circuit breaker was, 'and started turning off circuit breakers until I found the right one.' The one that supplied current to the booth was in the 'on' position, meaning that power was still going to the booth. He turned it off, tagged it so no one would turn it back on, and again checked the booth with the B voltage tester to be sure it was no longer hot. He observed 'that the conduit that comes out of the booth had been twisted out of the socket where it actually joined to a joint and by the way it was turned or had been turned and had pulled the electrical wires inside which, I assume, that is what caused it because it had cut into one of the conductors. . . . The conduit is used as a ground on the booth unless there is a ground wire in the conduit also. . . . I found that the conduit was broken. . . . Well, myself, I was wondering why it was broken and I just looked at the booth and you could tell that the booth had been twisted in a way because of the old concrete and the new where the booth had been sitting. I assumed that twisting motion of the booth is what caused the conduit to break.' ⁵

'take all reasonable precautions to protect the property of Telephone Company on (his) premises . . ..' It was expressly set out that any booths or other equipment furnished by Telephone Co. 'shall remain its property and be returned to it, whenever requested, in as good condition as reasonable wear [337 A.2d 747] and tear will permit.' The Telephone Co. installed the telephone booth. Smith', ³ at a total cost of $27.28. Huber said the electrical power for the booth came from an outlet on the outside of the building. It ran 'to the corner of the building. The Coca-Cola Company used to have a coca-cola machine sitting there and it's right under the eave of the building.' Huber said it was his outlet and it runs to 'the panel box', to his 'circuit breaker box' in the back room of his bar. The outlet was a double receptacle, 'you can put two plugs in it', and it was there before the telephone booth was installed where my change went, it's all over the parking lot.' They went out to look for it. In the meantime, Huber had called the Telephone Co., and while Hicks and Huber were outside a Telephone Co. employee drove up in a company truck. Hicks told him what had happened. Huber drove Hicks to Hicks's home. ⁴

ISSUES FOR DECISION

I

It is abundantly clear from argument of counsel and the comments of the court on the motion for a directed verdict and from the charge to the jury that the court permitted the case to go to the jury on the basis that the doctrine of res ipsa loquitur applied with regard to negligence by the Telephone Co. Therefore, the issue of first importance is whether the doctrine was properly invoked upon the facts and circumstances shown by the evidence.

THE LAW

Res Ipsa Loquitur

Ever since 1863 when a barrel of flour rolled out of a warehouse window in England and injured a person passing on the public street, the thing has been attempting to speak for itself as, during the argument in the case resulting, Baron Pollock suggested, in Latin, it should. Byrne v....