Isen v. Phoenix Assur. Co. of New York

• Citation: 270 A.2d 476,259 Md. 564
• Decision Date: 13 November 1970
• Docket Number: No. 102,102
• Parties: David ISEN et ux. v. PHOENIX ASSURANCE COMPANY OF NEW YORK.
• Court: Court of Appeals of Maryland

Page 564

259 Md. 564

270 A.2d 476

David ISEN et ux. v. PHOENIX ASSURANCE COMPANY OF NEW YORK.

No. 102.

Court of Appeals of Maryland.

Nov. 13, 1970.

Joseph Montedonico, Rockville (Donahue, Ehrmantraut & Gleason, Rockville, on the brief), for appellants.

Joseph C. Roesser, Wheaton (Arthur V. Butler, Wheaton, on the brief), for appellee.

Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SMITH and DIGGES, JJ.

McWILLIAMS, Judge.

Here we are urged to set at naught the judgment of the Circuit Court for Montgomery County in favor of the appellee (Phoenix) against the appellants (the Isens) for $1232.92. In doing so we shall indulge in still another comment in respect of infractions of Maryland Rule 535.

The Colstons live at 7400 Western Avenue in Chevy Chase. A little after 11 o'clock on the night of 20 March 1966 they heard 'a big thump in the front' of the house. Jumping out of bed they discovered instanter that the front end of a 1964 Oldsmobile Cutlass had breached their front door. The police were summoned and it was soon discovered that the intruder belonged to the appellant David Isen, their next-door neighbor. In due course Phoenix paid the Colstons for the cost of the repairs and thereupon, by virtue of its policy of insurance, became subrogated to their rights. In July 1968 Phoenix sued David Isen. After routine discovery procedures it amended its declaration to make the appellant Mildred Isen a party defendant. In the amended declaration it alleged that Mildred 'negligently, carelessly and imprudently' parked the car in such a manner that it 'did freely and in an uncontrolled manner roll down an incline' and strike the Colston house. It alleged also that David 'negligently, carelessly and imprudently' permitted this to happen. The case came on for trial before Shook, C. J., without a jury, on 24 February 1970.

Phoenix called Walker Colston as its first witness. He described the 'big thump' around 11:00 p. m. and the presence of the Isen car in his front door. He said he observed 'automobile tracks' coming 'down the hill, apparently from our next-door neighbor.' Mildred Isen, he added, came over later, expressed regret and said not to worry-they were insured. Counsel for Phoenix then called Mildred Isen 'as an adverse witness under Rule 35.' We shall assume he had in mind Code (1965 Repl. Vol.), Art. 35, § 9.

She testified the Cutlass was in her husband's name and that she had his consent to use it. He was out of town at the time. It has an automatic transmission. She said when she parked the car 'in the circular driveway in front' of the house 'about 6:30 in the evening' she 'automatically put it in gear.' What follows is an excerpt from her testimony:

'Q. Is it not a fact on the date of March 20, 1966, you did not put the car in gear?

'A. I can't answer that, no, sir, because I did put it in gear.

'Q. Do you remember when we took your testimony on December 23, 1968?

'A. Yes, sir; I do.

'Q. And in referring to page 8 of the transcript:

'Question: What did you do when you parked the car? Is it an automatic transmission?

'Answer: Yes.

'Question: What did you do?

'Answer: I just turned the key off and put my foot on the brake and went into the house.

'Question: This was approximately what time?

'Answer: Oh, between 6:30 and quarter of seven in the evening.

'Question: Did you lock your car at that time?

'Answer: I don't honestly remember.'

'Do you remember giving those answers to those questions?

'A. Yes, sir.

'Q. At that time you said nothing about putting it in gear, did you?

'A. Well, I automatically put the car in gear.

'Q. At that time did you turn your wheels toward the front of the house and away from the street?

'A. I turned them toward the driveway, toward an exit.

'Q. Going to the street?

'A. Yes, sir; uh huh.'

'Q. Isn't it a fact, Mrs. Isen, that at the time you parked your car, March 20, 1966, you don't know whether you put the emergency brake on your car or not?

'A. I automatically do, sir.

'Q. In this case you don't have any knowledge that you did, in fact, do it, though?

'A. I assume I did because I usually-it's just automatic with me, sir.'

She next heard of the car when two police officers came to the door. They wanted her to remove the car from the Colston property. She refused but she gave one of the officers her keys and he 'had no difficulty driving' the car back to her driveway.

Except for several witnesses whose testimony dealt exclusively with the question of damages Phoenix thereupon rested its case. What follows is an excerpt from the transcript of the record.

'THE COURT: Mr. Montedonico (counsel for the Isens), do you want to come up?

'(Bench conference not reported.)

'THE COURT: Motion for the defense is denied.'

'THE COURT: I understand the Plaintiffs rest, * * *.'

'MR. BUTLER: Yes, Your Honor.

'THE COURT: All right.

'MR. MONTEDONICO: Your Honor, I have no case.

'THE COURT: You rest your case?

'MR. MONTEDONICO: I rest my case and move for a directed verdict, as I did for the Plaintiff's case.'

'THE COURT: You gentlemen want to say anything else?

'MR. MONTEDONICO: Renew the motion.

'THE COURT: Do you want to argue anything more?

'JUDGE SHOOK: On the basis of the evidence before me, first on the Plaintiff's case, the fact that the Defendant's automobile, the Defendant Mrs. Isen struck the house of the Plaintiff, and the fact that the Plaintiff elicited from the Defendant Mrs. Isen the fact that she assumed that she put on the brake and put the car in gear, because this was her general practice; it was automatic with her, nevertheless would in my mind raise a serious question that would require me to let the case go to the jury, on the motion for a directed verdict by the Defendant.

'If this case were being held by a jury to determine whether or not in fact it was negligence on the part of the Defendant, the Defendant not meeting that question that was in the Court's mind, the Court finds for the Plaintiff in the amount of one thousand, two hundred thirty-two dollars ninety-two cents.

'Your exhibits, gentlemen, if you will take care of them yourselves, court stands adjourned.'

The Isens contend that Judge Shook erred when she denied their motion for a 'directed verdict.' In Smith v. State Roads Commission, 240 Md. 525, 539, 214 A.2d 792 (1965), we pointed out that in actions tried by the court without a jury a 'motion for a directed verdict' is not a proper motion. We explained carefully and at length that Rule 535 'was designed especially for non-jury situations.' We noted in Duck v. Quality Custom Homes, Inc., 242 Md. 609, 611, 220 A.2d 143 (1966), an appeal from the Circuit Court for Montgomery County, that Rule 535 had not been complied with. In Southwestern Mines, Inc. v. P. & J. Coal Company, Inc., 244 Md. 180, 184, 223 A.2d 162, 164 (1966), we said 'this (a motion for a directed verdict) is not a proper motion.' In Lewis v. Germantown Insurance Company, 251 Md. 535, 536-537, 248 A.2d 468 (1968), another appeal from the Circuit Court for Montgomery County, we chided the bar for its disregard of the Maryland Rules, especially Rule 535. We cited nine cases in each of which some mention had been made of the bar's dereliction in this regard. In Antietam-Sharpsburg Museum, Inc. v. William H. Marsh, Inc., 252 Md. 265, 267, 249 A.2d 721, 722, (1969), we said, 'Once again we remind both bench and bar that the motion for a directed verdict, in these circumstances, is improper. Maryland Rule 535.' (Emphasis added.) Perhaps we should expect that there will always be some members of the bar who will be unaware of the Rules and our decisions concerning them but one would suppose that, by now, trial judges, being fully informed, would either reject or refuse to act upon such improper motions. That we have chosen once more to twit both bench and bar in this regard should not provoke speculation that we have done so for any reason other than to focus attention upon the Rules and to remind all hands that they are not guides to the practice of law but precise rubrics 'established to promote the orderly and efficient administration of justice and (that they) are to be read and followed.' Brown v. Fraley, 222 Md. 480, 483, 161 A.2d 128, 130 (1960).

Because of its relevance to the instant case we shall repeat what we said in Lewis, supra:

'* * * (Appellee) did not move to dismiss Lewis' appeal and we have chosen not to do so nostra sponte. It must not be supposed, however, that the same degree of forbearance will be displayed, in the future, in respect of a similar disregard of the Maryland Rules.' Id. 251 Md. at 543, 248 A.2d at 473.

Neither was there any such motion here but we have elected not to dismiss the appeal because we think Judge Shook should have refused to receive the Isens' motion for a directed verdict and that, having done so, she should have required them to move to dismiss under Rule 535. And, since we are fully persuaded that 'on the facts and the law * * * (Phoenix) has shown no right to relief' we think a motion to dismiss should have been granted.

We have made it clear, we believe, that in cases where a motion to dismiss under Rule 535 has properly been filed, the trial judge should approach the testing of the legal sufficiency of the evidence produced by the plaintiff just as he would approach an appraisal of the evidence in a jury case upon the filing of a motion for a directed verdict. Smith v. State Roads Commission, supra, and Allen v. Steinberg, 244 Md. 119, 122-123, 223 A.2d 240 (1966). He is required, therefore, in non-jury cases, to consider the evidence and all logical and reasonable inferences deducible therefrom in a light most favorable to the plaintiff. Trusty v. Wooden, 251 Md. 294, 297, 247 A.2d 382 (1968); Finneran v. Wood, 249 Md. 643, 241 A.2d 579 (1968); Raff v. Acme Markets, Inc., 247 Md. 591, 233 A.2d 786 (1967). The trial judge should be mindful, however, that the words 'legally sufficient' have significance. As Chief Judge...