Goodwin v. Lumbermens Mut. Cas. Co.

Decision Date11 January 1952
Docket NumberNo. 70,70
Citation85 A.2d 759,199 Md. 121
PartiesGOODWIN et al. v. LUMBERMENS MUT. CAS. CO.
CourtMaryland Court of Appeals

David P. Gordon and A. Frederick Taylor, Baltimore (Charles C. Hartman, Jr., Baltimore, on the brief), for appellants.

Max Sokol, Baltimore (Dickerson, Nice & Sokol, Edwin T. Dickerson, Deeley K. Nice and Melvin J. Sykes, all of Baltimore, on the brief), for appellee.

Before MARBURY, Chief Judge, and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

Raymond T. Goodwin had his automobile insurance with the appellee. Coverage D in his policy was entitled 'Medical Payments' with a limit of $500 for each person, and the coverage was described in the body of the policy as follows: 'To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or upon, entering or alighting from the automobile, if the automobile is being used by the named insured or with his permission.'

After the occurrence of the accident hereinafter discussed, the four women who were injured, and their husbands, sued the appellee in four separate actions, each brought by a wife and husband, and each alleging a liability under Coverage D. It was stipulated at the trial that three of the women, Mrs. Goodwin, Mrs. Blum and Mrs. Cooper, each sustained medical expenses in the amount of the policy limit of $500, and Mrs. Kronau sustained medical expenses in the amount of $259. A trial was had in the Superior Court of Baltimore City before Judge Moser, sitting without a jury. He filed the following memorandum after holding the cases sub-curia for a few days: 'The court finds that none of the plaintiffs were 'entering or alighting' into or from the Goodwin automobile at the time they were struck and injured, and therefore the court's verdict is in favor of the defendant in all cases.' From the judgments for costs entered on these verdicts, the plaintiffs all appealed. The cases were heard together below, and were combined in one record and heard together here.

There is some dispute about the facts, but this, as will hereafter be shown, is based largely upon statements made to an insurance adjuster shortly after the accident, to the testimony of the officer who examined the scene of the accident shortly after it had occurred, and to some photographs which were taken. There does not seem to be any direct contradiction in the testimony given at the trial.

Mr. Goodwin, who was the owner of the car, had parked it on the evening of July 21, 1950, on the west side of St. Paul Street, between Chase and Eager Streets in Baltimore City, facing north. Across the sidewalk from the place where it was parked, a new building was being constructed, and the sidewalk was fenced off in such a way that the doors on the left side of the car could not be opened. St. Paul Street is a one-way street for northbound traffic. The occupants of the car, seven in number, attended a wedding party at the Belvedere Hotel on Chase Street, just west of St. Paul Street, and, at about 1:30 in the morning of July 22, they started back to the car in order to return in it to their respective destinations. Mr. Goodwin testified that he and Mr. Cooper and Mr. Kronau were detained in the hotel a minute or two after the ladies left, and he gave the keys to the car to his daughter, Mrs. Blum. All of the doors of the car were locked. The four ladies started down St. Paul Street from Chase, and Mr. Goodwin and Mr. Cooper were behind them and nearer to Chase Street, when the accident happened. What became of Mr. Kronau does not appear, and he did not testify in the case.

When the women reached the car, Mrs. Blum opened the right front door with the key, leaned in the car and reached around for the purpose of releasing the tab so that the rear righthand door could be opened. At that time, Mrs. Goodwin, mother of Mrs. Blum, was standing behind her, holding the right front door open Mrs. Cooper had her hand on the handle of the right rear door with the evident purpose of opening it as soon as Mrs. Blum had released the lock, and Mrs. Kronau was standing behind Mrs. Goodwin at or about the edge of the front door. While the women were in this position, and while Mr. Goodwin and Mr. Cooper were walking down St. Paul Street, about 25 feet away and about in line with the right edge of the car, another automobile came diagonally across St. Paul Street and struck the bumper or the right rear fender of the Goodwin car, and then swept along its right side, knocking all of the women down and carrying Mrs. Kronau on its front bumper to the point where it stopped. The place where Mrs. Kronau finally fell, or was lifted from the bumper, was 41 feet from the rear end of the Goodwin car, according to the measurement made by the officer. The striking car when it stopped was in the second lane of traffic, counting east from the west sidewalk, with, however, the left rear projecting somewhat over into the first lane. Mrs. Blum was knocked under the Goodwin car, and Mrs. Cooper was in the roadway beside it. Mrs. Goodwin was found lying in front of the Goodwin car approximately 26 feet 2 inches north of its rear, according to the measurements of a police officer. All of them were more or less severely injured.

The appellee does not agree that any of these women were at the time of the accident in the exact positions to which they testified, and to which Mr. Goodwin also testified, but this disagreement is not based upon positive evidence contradicting the testimony of the plaintiffs. The police officer who arrived shortly after the accident occurred, said that the information he got from some of the women was that they were standing in the street close to the Goodwin car when the other car came up and struck them. He did not remember anyone saying they were about to enter the car, but he did not ask them about this. He did not remember that any of them had said that the front door of the car had been open when they were struck, but there is nothing to show that he ever asked that. He said that, in his opinion, the door was not struck while it was open, but it was damaged because some of the bodies were thrown against the automobile. That, of course, is an opinion given after an accident, and, while it is given by a traffic officer who is accustomed to viewing accidents, it is not by any means equal to a statement of fact.

Some photographs were taken shortly after the accident happened, and it is contended by the appellee that the photographs of the Goodwin car indicate that it was struck while the door was shut because of an indentation on the front door, and a continuous line on the side of the car, which, it is contended, was caused by the bumper of the striking car. The line itself seems to extend upward, and we are unable to say, without any testimony at all, that it was made by the bumper, or that it looks as if it were made by the bumper. There was some damage to the Goodwin car in front of the door, which, it is claimed, was made by the door's swinging into it, and there is testimony that before the car could be taken away, this front door had to be tied because it would not shut. We are unable to draw sufficient inferences from these facts to overcome the definite testimony of all of those present that the door was actually open, or partially open, at the time the accident occurred.

In a statement given by Mr. Goodwin on August 1, 1950, about ten days after the accident, he said: 'The women were standing in the street on the right side of the car and Mr. Cooper was in the act of opening the door on the right side.' He also said: 'The only door of my car that was open was the right front door, and that was only partially open. Mr. Cooper was in the act of opening the door to allow the women to get in', and: 'None of the women were in the car or entering the car at the time of the accident. They were in the street.' Mrs. Cooper, in a statement given by her on August 7, 1950, said: 'Mrs. Goodwin, Mrs. Blum, Mrs. Kronau, my husband and I were standing in the street alongside the car. My husband was in the act of opening the right rear door when suddenly a northbound car struck four of the women.' When she was asked about this at the trial, she said she was at the rear door and had her hand on it, and that her husband was not there. She said she was confused at the time she signed the statement and it was not correct in that respect. Mr. Goodwin said in his testimony that Mr. Cooper was walking with him at the time when he was about 25 feet north of the car and the accident occurred. Mr. Cooper himself testified that he was walking about 20 to 25 feet away from the car along with Mr. Goodwin, and that he was not opening the door and was not going to drive. There is some contradiction between the statements themselves because Mr. Goodwin, in his statement, said Mr. Cooper was opening the front door, and Mrs. Cooper, in her statement, said he was opening the rear door, but in their testimony, both said that Mr. Cooper was not there and that Mrs. Cooper had hold of the rear door. Mr. Goodwin also said that the women were not entering the car, they were all standing in the street. They were, of course, all standing in the street, according to the testimony of everyone. There is no testimony that even Mrs. Blum had either of her feet off the pavement. Whether they were entering the car is, however, not a question of fact alone, it is a mixed question of law and fact with which we have to deal. Mr. Goodwin should not be found by an opinion on such a question, which he can hardly be competent to decide.

The appellee contends that as the trial judge did not say what facts he found, and as his statement that ...

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