Jacobson v. Julian
| Decision Date | 03 May 1967 |
| Docket Number | No. 325,325 |
| Citation | 229 A.2d 108,246 Md. 549 |
| Parties | Martin M. JACOBSON, t/a Checker Cab Association, Inc., et al. v. Viola T. JULIAN et vir. |
| Court | Maryland Court of Appeals |
Matthew Swerdloff, Baltimore (Myer E. Grossfeld, Baltimore, on the brief), for appellants.
Marvin Ellin, Baltimore (Leonard P. Baker, Jr., Baltimore, on the brief), for appellees.
Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, BARNES and FINAN, JJ.
As the result of being dragged in the street by a taxicab from which she had alighted, the passenger and her husband brought this action for personal injuries and other damages against the cab owner and his driver. The plaintiffs-appellees are Viola T. Julian and Michael J. Julian. The defendants-appellants are Martin M. Jacobson, trading as Checker Cab Association, and Rody D. Hicks. The jury returned a verdict for the plaintiffs and upon the entry of judgments absolute, the defendants appealed. The numerous questions on appeal concern the pleadings, the void dire question, the motions for directed verdicts, the requests for instructions, the instructions to the jury and the motions for a mistrial.
The accident occurred in the afternoon of a day in May of 1964 near the 'Italian Kitchen' restaurant operated by Viola Julian in that area of Baltimore City known as 'Little Italy'. On that day she had spent the afternoon shopping and had purchased several items which were placed in separate packages of varying sizes. She hailed the taxicab on Howard Street and asked to be taken to her home and place of business at High and Fawn Streets. When the cab turned into High Street (which is one way north) the passenger, who was wearing a long raincoat, began sliding, with her arms full of packages, toward the left side of the cab expecting to step out onto the west curb of the street, but when the driver stopped along side of her home, automobiles parked at the curb necessitated double parking and made it impossible to open the left rear door. The passenger then slid over to the right side of the cab in order to get into the street from the right rear door. She had some difficulty, due to the armful of packages and the tendency of the door to swing to, but finally managed to get the door open. After she got out, and as the cab door closed, her raincoat was caught between the frame and the door.
According to the plaintiff, she was not certain whether or not the cab driver helped her open the door, but she was positive that when the door was three-fourths shut the driver leaned over and pulled the door toward him 'with a click'. After he did so, she noticed that her coat was caught. She screamed, dropped her packages and tried to grab the handle of the door, but before her hand touched the handle, the driver drove away and she was thrown off her feet. That was all she remembered until she 'came to'
According to the defendant driver, the passenger did not request him to open or close the door and he had not done so. After she had paid him and gotten out of the cab, he made a note of the time and fare, looked over his shoulder, saw her to the rear of the cab and drove away. Although he had told a bystander that he had heard the passenger tell someone while she was lying on the street that her coat her caught in the cab door, he later denied talking to anyone except the police officer and an eye witness. He also denied ever opening or closing the door for the passenger.
A disinterested eye witness testified that as he was waiting in his automobile directly behind the taxicab for the driver to discharge the passenger, he noticed that the cab door opened and closed 'a little' and that she had trouble 'exiting from the cab' before she finally got out. He saw the passenger try to close the door with 'her elbow or something'. As she did so, the cab driver reached toward the back door 'and then the door shut'. He then noticed that her coat was caught 'on the door', that the driver 'pulled off suddenly' and that as he did the passenger 'lunged forward' and the cab 'drug her several feet'
The police officer, who questioned the driver at the scene, testified that the driver had told him that the passenger had been dragged as a result of her clothing catching in the back bumper of the taxicab after she had left the cab. When the officer questioned the passenger at the hospital as to the occurrence of the accident, she told him that the driver closed the door of the cab on her coat.
The procedural facts and such other circumstances as may be required will be stated when and as the several questions presented by the appeal are considered.
The appellants, assuming that they were entitled to a summary judgment, contend that the trial court (1) erred in not forthwith deciding and granting their motions for summary judgment and (2) abused its discretion in permitting a review of that discretion and in granting the petition of the appellees to file an amended declaration five days after hearing the first motion for summary judgment.
The original declaration stated that the plaintiff closed the door of the cab after alighting and, noticing that her coat was caught in the door, attempted to free it and being unable to do so was hurled upward, fell and was dragged in the street. But it did not refer to the double parking of the cab, the having to alight on the street side and the difficulty she had in opening the door because of the packages she was carrying at the time of alighting. Nor did the declaration refer to the fact that the cab driver reached over and pulled the door to after the passenger had partially closed the door.
When the first motion for summary judgment was filed, the only papers on file, so far as the docket entries show, other than the declaration and general issue plea, were certain interrogatories and answers. There were no depositions, admissions or affidavits.
At the hearing, the law motions judge held the first motion sub curia to permit the plaintiffs to file a memorandum in opposition to the granting thereof. After the memorandum was filed, the plaintiffs petitioned for leave to file an amended declaration. Leave to amend was granted and the amended declaration was filed. This was followed by a second motion for summary judgment and the dismissal of both motions. No objection was made, nor any exception taken, to the filing of the amended declaration.
While Maryland Rule 610 d 1 provides that when the moving party is entitled to judgment as a matter of law, the court should render judgment forthwith, that does not mean that entry of judgment may not be delayed for a reasonable time when, as here, the circumstances require it. Nor does the rule, as subsection d 5 states, limit or affect the power of a court to permit amendment of the pleadings at any stage of the proceedings, which, pursuant to Rule 320 d 1(b), should be freely granted in order to promote justice. And see Lange v. Board of Education, 183 Md. 255, 37 A.2d 317 (1944); Stoewer v. Porcelain Enamel & Mfg. Co., 199 Md. 146, 85 A.2d 911 (1952); County Com'rs of Queen Anne's County v. C. J. Langenfelder & Son, 237 Md. 368, 206 A.2d 710 (1965). There was no error in refusing the motions for summary judgment or in permitting amendment of the declaration.
The appellants, asserting that a juror to be competent need not be devoid of all beliefs and convictions, contend that it was error to propound a question on voir dire as to whether the prospective jurors had fixed opinions with regard to lawsuits involving personal injuries.
The specific question propounded by the trial court was-
'Does any member of this jury panel have any fixed opinion regarding law suits arising from alleged personal injuries that would prevent you from giving a fair and impartial verdict, based solely on the evidence in the case?'
Obviously, the question was asked in an effort to exclude such jurors as had fixed opinions with regard to suits for personal injuries or were prejudiced as a result of prior involvement in such suits, but the appellants, arguing that the minds of the jurors were directed at the very outset of the trial toward the injury aspect of the case and away from the cause of the accident, claim that the voir dire question predisposed of the issues of liability, fault and responsibility. We disagree. Nor do we agree that the phrase 'law suits arising from personal injuries' was improper and inapplicable where the issues to be determined were not limited to personal injuries. In Grossfeld v. Braverman, 203 Md. 498, 101 A.2d 824 (1954), where a similar question on voir dire was propounded, we held that the question was not only properly framed but, being directed at the existence of bias and prejudice, was well within the discretion of the court. Also see Bryant v. State, 207 Md. 565, 115 A.2d 502 (1955). Cf. Mason v. State, 242 Md. 707, 218 A.2d 682 (1966). The voir dire question was proper.
The appellants contend that the trial court erred in refusing to direct a verdict in their favor (a) at the close of the case for the plaintiffs and (b) at the conclusion of the whole case.
The contention is based on the claim that the plaintiffs failed to prove any negligence on the part of the defendants in that neither of the witnesses (the passenger and the eye witness) could testify that the driver closed the cab door and, to the contrary, proved that the passenger was negligent in that she either closed the cab door on her coat or let it get caught on the bumper of the cab, but these suppositions, for that is all they are, overlook the fact that the testimony clearly indicated that there were conflicting contentions which presented a question for the jury, as the trier of fact, to decide.
While there was evidence on behalf of the appellants to the effect that the cab driver had neither opened nor closed the door for the passenger...
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