Kelch v. Mass Transit Administration, 806

CourtCourt of Special Appeals of Maryland
Citation400 A.2d 440,42 Md.App. 291
Docket NumberNo. 806,806
PartiesRonald M. KELCH et ux. v. MASS TRANSIT ADMINISTRATION et al.
Decision Date18 April 1979

Harry Goldman, Jr., Baltimore, with whom were Norman Hochberg and Alex S. Katzenberg, III, Baltimore, on brief, for appellants.

Patrick A. O'Doherty, Baltimore, with whom was H. Jerome Fenzel, Baltimore, on brief, for appellees.

Argued before MORTON, MELVIN and LISS, JJ.

LISS, Judge.

This is an appeal by Ronald M. Kelch and Carol Kelch, his wife, appellants, from a judgment returned in favor of the Mass Transit Administration, appellee, after a lengthy trial in the Superior Court of Baltimore City.

Appellant, Ronald Kelch, on September 18, 1974 was operating a motorcycle in Baltimore City in a northerly direction on Pulaski Street at its intersection with Ramsay Street. The appellant's version of the facts stated that a bus belonging to the M.T.A., appellee, was being operated in a southerly direction on Pulaski Street and that its driver attempted to make a left turn, onto Ramsay Street, into the path of the appellant's vehicle. The bus driver testified that his view of the road was partially blocked by the contour of the area which included a curve in the road approaching the intersection of Pulaski and Ramsay Streets; that he had begun his turn; that the front of his vehicle had barely crossed the center line when he saw the motorcycle and stopped the bus; and that his bus was stationary for several seconds when it was hit by the motorcycle. The appellee presented as a witness a passenger on the bus who estimated that the bus had been at a standstill about four seconds when it was struck by the motorcycle.

The testimony presented by the appellant indicated that he had sustained serious and disabling injuries causing him to incur substantial medical bills. Appellant testified that he sustained serious monetary losses because of his inability to return to work as a result of his injuries. The case was submitted to the jury which returned a verdict for the defendants-appellees, and it is from this judgment that this appeal was taken.

Appellants raise three issues, the first of which is divided into three sub issues. Those issues are stated by the appellants as follows:

1. Were the appellants denied the right to have their case tried by a fair and impartial jury?

A. Did the court err in failing to grant appellants' requested Voir dire question No. 11 concerning co-equal rights of motorcycles and other vehicles lawfully using the highway?

B. Did the court err in failing to grant appellants' motion In limine concerning mention of Social Security disability benefits as a collateral source?

C. Did the court err in failing to grant appellants' requested mistrial motions and taking remedial action after numerous instances of misconduct of appellees' counsel?

2. Whether the lower court committed prejudicial error in denying appellants' discovery of appellees' accident reports prior to trial.

3. Whether the trial court erred in failing to grant a directed verdict in favor of the appellants on the issue of negligence.


Prior to the impaneling of the jury appellants requested the trial court (Dyer, J.) to propound its Voir dire question No. 11. That question stated: This case involves a collision between the plaintiff's motorcycle and a Mass Transit Administration bus. Do you understand that a motorcycle is, by law, a licensed motor vehicle which has the same rights, and is subject to the same obligations and duties as any other motor vehicle driven on the streets? The trial judge refused to propound this question, but during the course of Voir dire questioning did ask if any of the prospective jurors had any feelings, prejudices or fixed opinions which would prevent them from rendering a fair and impartial verdict in this case. One of the prospective jurors stated to the judge, in the presence of the other members of the jury panel, that her father had been killed on a motorcycle and she considered them dangerous. That prospective juror as well as several others were discharged for cause; none of the remaining members of the prospective jury panel expressed any prejudice or admitted an inability to render an impartial verdict. Appellants contend the refusal of the trial court to propound Voir dire question No. 11 amounted to an abuse of the trial judge's discretion. We do not agree. We suggest that the appellants have misconstrued the purpose of Voir dire questioning. Voir dire is not an appropriate vehicle for instructing the jury in the law of the case. The sole purpose of Voir dire is to ascertain the existence of cause, if any, to disqualify a juror from participating in consideration of a case. Casey v. Roman Catholic Archbishop, 217 Md. 595, 605, 143 A.2d 627 (1957); Grossfeld v. Braverman, 203 Md. 498, 101 A.2d 824 (1954); Adams v. State, 200 Md. 133, 88 A.2d 556 (1952). Either party in a jury trial has a right to have questions propounded to prospective jurors on their Voir dire which are directed to a specific cause for disqualification, and the failure to allow such questions is an abuse of discretion constituting reversible error. Alexander v. R. D. Grier & Sons Co., 181 Md. 415, 30 A.2d 757 (1943); Cohen v. State, 173 Md. 216, 196 A. 819 (1937). The scope of questions propounded to jurors is in the discretion of the trial court. In exercising that discretion, the Court of Appeals said, in Bryant v. State, 207 Md. 565, 583, 115 A.2d 502, 510 (1955):

In the exercise of * * * discretion, the trial judge should adapt the questions to the needs of each case in the effort to secure an impartial jury. Any circumstances that may reasonably be regarded as rendering a person unfitted for jury service may be made the subject of questions and a challenge for cause. Accordingly an examination of a juror on his Voir dire is proper as long as it is conducted within the right to discover the juror's state of mind in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him.

We find no basis for holding that the trial court was arbitrary or that it abused its discretion in refusing to propound the general proposition of law encompassed in Voir dire question No. 11. This is particularly true when it is considered that the trial judge did ask the Voir dire question which required the prospective jurors to answer whether they had any feelings or prejudices concerning people who owned or operated motorcycles which would prevent the juror from returning a fair and impartial verdict. The statement of the law contained in Voir dire question No. 11 was appropriately given to the jury at the conclusion of the evidence before the case was submitted to the jury. Finally, we note that at one point in the proceedings, counsel for the appellants complimented the trial judge for making available to the litigants a fair and impartial jury panel. We must conclude under the circumstances that the complaint concerning the court's abuse of its discretion is an afterthought occasioned by the unsatisfactory verdict. We find no abuse of discretion by the trial court.


Appellants next urge that the trial court erred in failing to grant appellants' motion In limine restricting the appellees from mentioning social security disability benefits being paid to the appellant, Kelch, since they were funds paid to Kelch from a collateral source and the appellee was entitled to no credit in determining the jury's assessment of damages because of such collateral funds. Again we disagree. The trial judge denied the motion In limine but ruled that the relevance of the social security benefits was to be restricted only to the issue of whether the payment of these benefits had any effect on the appellant's statement that he was unable to work. The trial judge very carefully instructed the jury of that in assessing damages:

. . . you are not to consider the social security benefits which have been paid to Ronald Kelch and his family in the past, and which may be paid to him in the future, for the reason that the law considers that Mr. Kelch has earned such social security payments by his labor, and that such earnings should not benefit the person whose negligence caused this accident, if you find such negligence. You are therefore instructed that you should not reduce the amount of your verdict either by reason of social security benefits or the fact that certain medical or hospital bills may have been paid by medical assistance, or from some other collateral source. However, you may consider the collateral source of money in judging the motivation of the plaintiff to return to work, and for those same reasons you should not reduce your verdict, if any such you find, by the amount of any income tax considerations or any estimated tax.

We consider this a fair statement of the law. The Court of Appeals, in Leizear v. Butler, 226 Md. 171, 172 A.2d 518 (1961), approved the admission of evidence that a plaintiff had been paid his wages by his employer during his absence from work, allegedly as a result of injuries sustained in an accident but ruled that the amount of damages was not to be reduced because of payment of these funds from a collateral source. In Leizear, supra, the Court of Appeals noted with approval that the evidence of collateral payments is admissible if there is evidence in the case of malingering or exaggeration of injury (McElwain v. Capotosto, 332 Mass. 1, 122 N.E.2d 901 (1954); Union Transports, Inc. v. Braun, Tex.Civ.App., 318 S.W.2d 927 (1958); Cf. Ridilla v. Kerns, 155 A.2d 517 (D.C.App.1959)) but evidence as to collateral payments is inadmissible in the absence of evidence of malingering or exaggeration or where the real purpose of the evidence offered as to collateral sources is the mitigation of liability for damages of the defendant. R. E. Dumas Milner Chevrolet Co. v. Morphis, Tex.Civ.App., 337...

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    ...or exaggeration of injury and that there was no evidence supporting malingering or exaggeration sub judice. In Kelch v. Mass Transit Admin., 42 Md.App. 291, 400 A.2d 440 (1979), aff'd, 287 Md. 223, 411 A.2d 449 (1980), we were faced with a near identical situation. In that case, the trial c......
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