Gwynn Oak Park, Inc. v. Becker

• Decision Date: 24 January 1940
• Docket Number: 9,10.
• Parties: GWYNN OAK PARK, Inc., v. BECKER (two cases).
• Court: Maryland Court of Appeals

10 A.2d 625

177 Md. 528

GWYNN OAK PARK, Inc., v. BECKER (two cases).

Nos. 9, 10.

Court of Appeals of Maryland

January 24, 1940

Appeals from Superior Court of Baltimore City; Samuel K. Dennis Judge.

Actions by James L. Becker, an infant, by his mother and next friend Helen E. Becker, and by Helen E. Becker, against Gwynn Oak Park, Incorporated, for injuries sustained by the infant in defendant's playground. From judgments for plaintiffs defendant appeals.

Affirmed.

Wendell D. Allen and O. Bowie Duckett, Jr., both of Baltimore, for appellant in both cases.

L. Wethered Barroll and Charles D. Harris, both of Baltimore (- James J. Lindsay, Jr., of Baltimore, on the brief, for appellees in both cases.

Argued before BOND, C.J., and SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

JOHNSON, Judge.

Two appeals appear in this record by Gwynn Oak Park, Inc., one from a judgment entered by the Superior Court of Baltimore City in favor of James L. Becker, infant, by Helen E. Becker his mother and next friend; the other from a judgment entered by the same Court in favor of Helen E. Becker, whose suit was to recover for loss of her son's services. Both cases depend upon the same facts and were heard together in the lower court.

Appellees have filed a motion to dismiss the appeals upon the principal ground that appellant's bills of exception were not submitted to their counsel within not less than thirty-five days before the record was required to be filed in this Court. Code of Public Local Laws, Article 4, Sec. 316; Baltimore City Charter, Sec. 411. Orders for the appeals were filed on August 2, 1939. The time, therefore, for the transcript of the record to reach this Court was November 2, 1939. If the statute is to be literally followed, it was incumbent upon appellant to submit its bills of exception to opposing counsel thirty-five days prior to November 2, to-wit, not later than September 28, 1939. Appellant admits that its bills of exception were not submitted within said period and avers that prior to the thirty-five day period it had discussed the matter with one of counsel for appellees and was then 'advised and understood', as was the customary practice between counsel, that a literal compliance with the aforementioned statute would not be required. The record further shows that on October 11, 1939, upon petition of appellant, the time for signing the bills of exception was extended until October 23, and the time for submitting them to opposing counsel was extended to October 8. Bills of exception were received by opposing counsel on October 7.

In State for Use of Thompson v. Coal Co., 150 Md. 429, 133 A. 601, it was held that the failure to submit bills of exception to opposing counsel within the time named in the local statute was not ground for dismissing an appeal if such bills of exception were submitted within an extension of the time granted by the Court and the opposing party was not prejudiced by the delay. In the present case they were actually signed by the trial Court on October 17, 1939, within the extended time. Moreover, since the transcript of the record was filed in this Court on October 18, it would seem clear that appellees have in no way been injured by any delay in receiving the bills of exception. Compare that decision with Baltimore Paint & Color Works v. Parts Co., 173 Md. 210, 195 A. 558, where there was no extension for submitting and signing the bills of exception. Apart from these considerations, Rule 47 of this Court provides that 'all motions to dismiss appeals shall be filed at least five days before the cases are called for argument, unless the motion be based on some cause arising after that time * * *' etc. Under that rule the motion to dismiss should have been filed not later than January 4, but two days later no such motion appeared upon the Clerk's docket. In view of these considerations, the motions to dismiss the appeals are overruled.

Four exceptions were reserved by appellant to the rulings of the trial Court, the first three upon evidence and the last upon the prayers. Before considering these, we will make some reference to the nature of the injuries sustained by the infant plaintiff, James L. Becker, which occasioned the suits.

At the time of the trial on June 16, 1939, Becker was thirteen years old. His immediate relatives consisted of his mother and a twin brother, his father, a Lt. Commander in the U.S. Navy, having died in 1934. After her husband's death Mrs. Becker secured employment in Washington, D. C., leaving her two boys in the home of her aged mother on the Old York Road and from her earnings she supported the mother and boys. From some undertermined cause James at five years of age began having epileptic seizures. According to his testimony and that of several persons who testified for him he always had a very definite warning of such attacks and realized they were coming on; dark spots would appear before his eyes and shortly thereafter he would lose consciousness, froth at the mouth and twist his body into various shapes, but when the attacks subsided his conversation would be unintelligible and he would remain in a state of stupidity from half an hour to two hours. At times on those occasions he would seem to be asleep, but at no time could he converse intelligently, for he only mumbled and one could make nothing out of what he said. There was also testimony that he had such attacks about twice a month.

Because of the infirmity of his grandmother and her inability to take care of both boys, his mother sought a place for them to stay and was referred to the home of Rev. and Mrs. Current, of Dundalk. She felt that because the home was in the country and James liked it, it would be a fine place for him. He went there to live in May, 1938, and seemed to adjust very well in his new surroundings.

On the morning of July 20, 1938, Mrs. Current took him to Gwynn Oak Park, the occasion of her visit being to attend a picnic of the Bible Class of the Church where her husband was the Minister. No admission was charged to enter the park, but it was open to the public as a place for picnics and innocent amusements, and refreshments were on sale. Mrs. Current had taken lunch for the visit and when this was spread upon the ground, she went to one of the park concessions for coffee. When she returned from purchasing the coffee, those present informed her that Becker had stated he was going to the playground. Lunch was then about ready and she began to inquire for the boy, and while searching for him learned from some children that he had been hurt. He had been absent from her just long enough for her to get the cup of coffee. Becker testified that upon reaching the playground he rode the nickel automobiles twice and then went over to the sliding board nearest the water; that he climbed up to its top without any difficulty, but when he put his leg down the 'piece you go down on the sliding board straight down', it began to shake back and forth with him; that he recalled falling. He went 'through the air twice', spun like a top and knew he hit the ground and then became unconscious. He was then asked to detail something about that 'shaking' and answered, it shook from side to side about a foot each way.

'About a foot each way? A. Yes.

'Q. And how did you fall, straight down or over the side? A. Over the side.

'Q. You don't remember which side it was, do you? A. No.

'Q. What is the next thing after that that you remember? A. When I woke up I yelled for Mrs. Jump to help me a couple times.

'Q. Did she help you? A. She went over and got Mrs. Current.

'Q. Then what happened after that? A. She would not let anybody pick me up. She went to call the ambulance.

'Q. How long was it before the ambulance got there? A. About an hour.

'Q. Then the ambulance took you to the hospital? A. Yes.

The Court: What hospital was it? The Witness: The University of Maryland.'

Becker positively denied that he felt the slightest discomfort when he reached the top of the sliding board or that he felt dizzy, or had any black spots before his eyes, but stated he was quite well and felt as he always did when he did not have those fits.

Mrs Eva May Jump, who also attended the picnic, testified that when she arrived at the Park, it was before noon, because one of the events of the day in taking her little boy there was a box luncheon and she recalled that it was not time to have lunch upon arrival; that she sent the little boy off with his nurse to play for a while, and they went over to one side of the playground while she walked to the far end where the sliding board was and she saw James Becker lying on the ground near the sliding board. At first she did not know whether he was asleep or awake, but about that time he saw her and called for help, stating that he had fallen from the top of the sliding board and thought he was paralyzed, because he could not move his legs. Mrs. Jump went to the boathouse for help and an attempt was made to lift Becker, but he screamed so and had so much pain they had decided to wait until a doctor arrived. She stated further that he told her he was with the minister's wife, whose name she knew, and in a short while they found Mrs. Current and she, the witness, stayed with him while efforts were made, as she thought, by the authorities to get a doctor; that it had rained in the morning and the ground was wet and muddy, because she sat beside Becker until help came and was herself quite muddy; that the child complained so and was in such pain she thought there should certainly be a way to secure a physician and told them that she knew there were seven doctors at Gwynn Oak Junction and one would come out, but they said that they had tried all and none...