Ferry v. Cicero, 469

• Decision Date: 30 July 1971
• Docket Number: No. 469,469
• Parties: Ronald E. FERRY et al. v. Linda Joy Walker CICERO et al.
• Court: Court of Special Appeals of Maryland

Page 502

12 Md.App. 502

280 A.2d 37

Ronald E. FERRY et al. v. Linda Joy Walker CICERO et al.

No. 469.

Court of Special Appeals of Maryland.

July 30, 1971.

Jack H. Olender, Oxon Hill, for appellants.

William Clague, Washington, D. C., with whom was Francis C. O'Brien, Silver Spring, on brief, for appellees.

Argued before MURPHY, C. J., and MOYLAN and POWERS, JJ.

POWERS, Judge.

Ronald E. Ferry and his wife, Mary C. Ferry, brought suit in the Circuit Court for Prince George's County, claiming damages resulting from injuries sustained by Ferry when he was a passenger in a taxicab being driven on Addison Road, a favored highway. The cab was in collision with a car which entered the favored highway from an intersecting road, where a stop sign was posted. The entering car was owned by John Carl Boblitz and was driven by Linda Joy Walker, a minor whose driver's license application was said to have been vouched for by Mrs. Mary Boblitz, her sister. Miss Walker later married, and became Mrs. Cicero.

The Ferrys sued Mrs. Cicero, Mr. and Mrs. Boblitz, and the driver and the owner of the taxicab. Upon appropriate motions all but Mrs. Cicero and Mrs. Boblitz were granted directed verdicts by the trial judge. The case went to the jury as to the defendants Linda Joy Walker Cicero and Mary Boblitz, and the jury returned a verdict for those defendants. Mr. and Mrs. Ferry appealed from the judgment entered on that verdict. They assert no claim on appeal against the taxicab driver or owner, nor do they contend that the judgment in favor of John Carl Boblitz should be disturbed. The parties to the appeal stipulated that the only portions of the proceedings to be transcribed for inclusion in the record where the testimony of the investigating police officer, and the arguments of counsel.

Appellants raise two points in this appeal:

1. Whether hearsay testimony, prejudicial to plaintiffs, was properly admitted at the instance of one defendant, against his cross-defendant, with an instruction to the jury that it was not admissible against plaintiffs.

2. Whether improprieties of defense counsel constituted a studied effort to prejudice the jury, and deprived plaintiffs of a fair trial.

1.

Each of the two sets of defendants filed a cross-claim for contribution against the other. At the trial, plaintiffs called the officer who investigated the accident, William R. Roberts of the Prince George's County Police, for direct examination. In his cross examination by counsel for appellees the officer was permitted by Judge James H. Taylor, who presided, to relate what appellee Cicero told him concerning the accident. Her statement to the officer had been made in the presence of the cab driver, (a defendant and a cross-defendant) but not in the presence of appellant Ferry. It was to the effect that she had stopped at the sign and waited for oncoming traffic, then proceeded to make a left turn onto Addison Road, when the rear end of her vehicle started sliding on the icy surface of the road, and caused the front of her vehicle to turn around and come back across the northbound lane of Addison Road.

In ruling on appellants' objection to this evidence as hearsay, Judge Taylor said:

'THE COURT: I overrule the objection, but with this admonition, and I say this to the foreman and ladies and gentlemen of the jury, whatever the witness may testify to as having been said by Mrs. Cicero or any other parties before the Court outside of the presence of Mr. Ferry is not admissible against him, it is not to be considered to his favor or to his prejudice, this is only as between the other parties but not as to him, and I think I would ask you to accept whatever the statement might be with that admonition.'

In 1 Jones on Evidence (Fifth Edition), § 203, the author says:

'So evidence which is admissible as to one party should not be excluded because it is not competent against another party to the suit. In such case the effect of the evidence should be limited by proper instructions.'

We also find the rule clearly expressed in 2 Conrad, Modern Trial Evidence, § 1226, where it is said:

'Where there are several parties on one side, or where several causes are tried together and evidence is offered which is competent as to one or more parties or cases, but not competent as to other, the objecting party has no right to object but should request the court to limit the evidence.'

We think that the writers quoted above state the correct rule, and Judge Taylor was correct in his ruling on this objection, with the admonition he gave to the jury limiting the applicability of the testimony.

2.

Appellants point to four instances in which they say that the conduct of appellees' counsel was so improper that it was prejudicial to the point of depriving appellants of a fair trial. We shall discuss each of these instances.

Appellants argue that appellees' counsel acted improperly:

a.

By offering in evidence a deposition of the police officer, not a party, but who had already testified and had been excused, knowing it to be inadmissible. Thereafter, in argument, appellees' counsel said:

'I tried to put his deposition in, and put it on this side, but they must have been afraid of something in that document because it didn't come in. As a matter of fact, they must have been afraid of a lot of things in this trial because I think most of the testimony of the transcript will show that 90 per cent of it is objections and arguments as to procedural aspects of this trial. As I told you in my opening statement, I think I like to give you the whole ball of wax. I attempted to.'

We agree that counsel must have known that the deposition was not admissible, and that it was improper for him to make the offer in the presence of the jury. However, appellants' objection to it was properly sustained, and the offer did not in any way convey to the jury any substantive information. On the other hand, the statement in argument quoted above, which grew out of the improper offer, we consider both improper and prejudicial. But when it was made, there was no objection, no request for an admonition to the jury, and no motion for a mistrial. We cannot measure the extent of prejudice that may have been generated, in the atmosphere and under all the circumstances that existed at the time, but no doubt the trial judge could have done so, had he been requested. We fully understand the dilemma of opposing counsel, requiring instant evaluation of several alternatives. A mistrial would require a new trial, with its attendant...