Gmurek v. Kajder
| Decision Date | 10 December 1953 |
| Docket Number | No. 54,54 |
| Parties | GMUREK v. KAJDER. |
| Court | Maryland Court of Appeals |
Wm. L. K. Barrett, Baltimore (Anthony J. Nolan, Baltimore, on the brief), for appellant.
W. Lee Harrison, Towson (Michael Paul Smith, Towson, on the brief), for appellee.
Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
A plumber here appeals from a judgment against him for personal injuries sustained by the appellee when a hot water faucet, installed by appellant in a basement bathroom in appellee's home, fell out of the installation on the occasion of its first use. Hot water poured forth, severely scalding appellee, and she suffered further injuries in escaping from the tub. Appellant contends that appellee failed to meet her burden of showing negligence on the part of the appellant and that the trial court should not have submitted the case to the jury.
The initial suit for injuries was countered by the plumber's cross-suit for an unpaid balance of the agreed contract price for the installation of the bathroom fixtures but on this appeal we are concerned only with the personal injury suit.
We consider first the appellee's 'Motion to Dismiss the Appeal' for failure to observe Rule 39 of the Rules of the Court of Appeals. This rule makes it the appellant's duty to include with his brief an appendix containing such parts of the record as he desires the Court to read. The rule also imposes on the appellant the obligation to furnish the appellee within ten days after the filing of the transcript of the record in this Court, with a statement of the parts of the record he proposes to print with his brief.
What parts of the record should be printed in the appendix depends in each instance on the nature of the case and on the questions to be argued on the appeal. Where the disputed question is, for example, the sufficiency of the pleadings the appellant may well omit a mass of testimony which would throw no light on the problem. This very case aptly illustrates how large parts of the transcript may and should properly be excluded from the appendix. Here much testimony pertained to the contract and alleged nonperformance in respect to matters not touching the asserted negligence which resulted in the injuries complained of. This mass of material the appellant was quite correct in not reproducing in the appendix.
The sole basis of the present appeal is the claim that the Court erred in refusing to grant a prayer for a directed verdict on behalf of the appellant. His prayer is grounded on the assertion that there was no legally sufficient evidence of negligence. In such a case it became the appellant's duty to print in the appendix all testimony bearing on the alleged negligence, so that the Court could form a sound judgment as to whether or not an issue existed for submission to the jury. If less than this was supplied the rule has been violated.
Rule 36, in requiring an appellant to print as part of the appendix to his brief only the judgment, decree, or order appealed from, and any opinion or charge of the court below, has the beneficial purpose of reducing costs. Rule 39, § 1(e), however, requires that the appendix to the appellant's brief shall contain 'such parts of the record as he desires the Court to read.' The rule has been interpreted to mean that the appendix should contain all the material evidence which it is necessary for the Court to consider in deciding whether a directed verdict should have been granted. All the necessary material is not presented when the appellant reproduces in the appendix only the testimony which supports his contentions, ignoring what militates against him, for the Court cannot ignore the opponent's testimony in judging the legal sufficiency of the evidence. Strohecker v. Schumacher & Seiler, Inc., 185 Md. 144, 43 A.2d 208; Butler v. Reed-Avery Co., 186 Md. 686, 48 A.2d 436; Naughton v. Paul Jones & Co., 190 Md. 599, 59 A.2d 496; Platt v. Wilson, 191 Md. 371, 62 A.2d 191; Sunshine Laundry Corporation v. White, 197 Md. 582, 80 A.2d 1; Seybolt v. Baber, Md., 97 A.2d 907; Schwartzman v. Payne, Md., 100 A.2d 23.
The appellee is not required to perform this duty if the appellant neglects it, but the appellee may move to dismiss. See Sunshine Laundry Corporation v. White, supra, 197 Md. at page 586, 80 A.2d at page 3.
To decide the Motion to Dismiss we...
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