Klein v. Dougherty

• Decision Date: 04 April 1952
• Docket Number: No. 152,152
• Citation: 87 A.2d 821,200 Md. 22
• Parties: KLEIN et ux. v. DOUGHERTY et al.
• Court: Maryland Court of Appeals

Page 22

200 Md. 22

87 A.2d 821

KLEIN et ux. v. DOUGHERTY et al.

No. 152.

Court of Appeals of Maryland.

April 4, 1952.

Norman C. Melvin, Jr., Baltimore (Cook, Ruzicka, Veazey & Gans, Baltimore, on the brief), for appellants.

Thomas G. Andrew, Baltimore (Walter R. Tabler, Jr., Baltimore, on the brief), for Allied Oil Burner Service.

Herbert L. Grymes, Baltimore, on brief, for Andrew Dougherty.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, and HENDERSON, JJ.

COLLINS, Judge.

This is an appeal from a judgment rendered by the trial judge, sitting without a jury.

The appellees have filed in this case a motion to dismiss the appeal for the reason that the appellants have failed to include in their appendix as required by Rule 39(e) of this Court 'such parts of the record as he desires the Court to read.' In the very recent case of Lane Manor Corporation v. Byers, Md., 86 A.2d 731, No. 104 This Term, in which we dismissed the appeal on this ground, we pointed out the following: 'Appellee has filed a motion to dismiss the appeal in this case for failure of the appellant to comply with Rule 39 of this Court. Strohecker v. Schumacher & Seiler, 185 Md. 144, 43 A.2d 208; Sunshine Laundry Corp. v. White, Md., 80 A.2d 1. As pointed out by Chief Judge Marbury in the case of Strohecker v. Schumacher, supra, when Rule 36 of this Court was passed, doing away with the necessity of printing the record on appeal, it was done with the intention of decreasing the cost of appellate litigation. That rule, in addition to other things, requires that in the appendix of appellant's brief should be printed such part of the record as appellant desires the Court to read. There must be sufficient parts of the testimony printed to enable us to pass upon the question raised. In the case of Sunshine Laundry Corporation v. White, supra, cases involving Rule 39 were reviewed and this Court there reiterated that the appellant must print the testimony material to the issue or issues raised.' In the Lane Manor case questions of estoppel and credibility of witnesses were raised and there we were of opinion that the appellant had not printed in his appendix sufficient of the evidence in the transcript to pass upon those points.

In the instant cases we think that the testimony material to the issues here raised is printed in the appellant's brief. There are, however, reasonable grounds for difference of opinion on that point. In the case of Kenny v. McAllister, Md., 84 A.2d 897, 899, Judge Markell explained the rule as follows: 'Appellant contends that appellees should be required to pay the cost of printing, in appellant's appendix, repetitious matter at the demand of appellees and on their threat to move to dismiss the appeal if the demand were not complied with. The short answer to this contention is that Rule 39 does not require the appellant to print anything the appellee may demand. In Sunshine Laundry Co. v. White, Md., 80 A.2d 1, and in other cases we have held that it is not sufficient for the appellant to print garbled bits of testimony or parts otherwise clearly inadequate to present the questions which appellant asks us to review. We have also imposed on appellees cost of duplicated printing in appellees' appendix. Martin v. United Slate, Tile & Composition Roofers, Md., 77 A.2d 136, 142. But Rule 39 recognizes that there may be room for reasonable difference of opinion as to what should be printed and permits the appellee to print anything not printed by the appellant. We do not undertake to decide in every case just how much should have been printed. When there is reasonable ground for difference of opinion, we would not dismiss the appeal for not printing, even though we might not impose the cost of printing on the appellee.' There are no appendices to the appellees' briefs in this case. The appellees also, to support their motion to dismiss, rely on the fact that appellants did not supply them with a statement of the parts of the record they proposed to print with their brief, as required by Rule 39, Section 2. Appellants say that this was an oversight on their part. Appellees do not state in their motion that they received appellants' appendix too late to enable them to supplement it in their briefs. Of course, appellees should have been furnished with this information within ten days after the filing of the transcript of the record in this Court. We are of opinion that appellees have not been so prejudiced as to justify a dismissal of the appeal, especially since there seems to be little dispute about the facts in this case. Compare Naughton v. Paul Jones & Co., 190 Md. 599, 605, 59 A.2d 496.

Milton Klein and wife constructed a home on Wirt Avenue in Baltimore. He acted as general contractor and let subcontracts for the various phases of the work. When the furnace was installed by Mr. Andrew Dougherty, the smoke pipe was put in a hole in the chimney without a hole being cut through the tile lining of the chimney. When the furnace was started by Allied Oil Burner Service there was no way for the smoke to escape in the chimney. When Mr. Klein, the appellant, drove by the house he saw smoke coming from an exhaust vent in the kitchen. Upon investigation it was found that the interior of the house was covered with soot. As a result, the equitable plaintiff paid the Kleins $1,100, and suit was entered against the appellees on a declaration containing a count in contract and a count in tort. The trial judge found that all the parties in the case were negligent and finding the plaintiffs, appellants here, guilty of contributory negligence, a judgment was rendered in favor of the defendants, appellees. From that judgment the appeal is here.

Appellee, Dougherty, was hired to put in the furnace, the details having been left to him. The brick mason had installed a flue lining in the chimney and had left a hole in the bricks for the smoke pipe, about four of five feet above the floor level. The flue lining was cemented to the sides of the chimney and no air could get up between the chimney and the lining. The brick mason did not cut a hole through the tile lining and there was testimony that there was no difficulty in seeing the tile lining through the hole. There was testimony in the case from a Mr. Parr, who had been in the heating and plumbing business for fifteen years, that he had never found a job where the tile lining was cut through. He said that the brick contractor leaves an opening and the man who puts the smoke pipe up cuts through the tile lining. Although disputed, the trial judge found that a thimble had been installed in the chimney. This is a metal sleeve installed in the hole to accomodate the smoke pipe. If the thimble was installed it came out about three inches beyond the chimney wall and the distance from the beginning of the hole for the smoke pipe to the tile was seven or eight inches. If the thimble was not installed the distance from the beginning of the hole to the tile was the thickness of one brick or approximately four inches.

Mr. Dougherty testified that Mr. Klein took him to the house, showed him where the furnace was to be placed, the chimney, and the hole for the smoke pipe. The cellar at that time had no lights and was dark. When Mr. Dougherty installed the furnace he had no flashlight and the cellar was dark. He said he could not see into the chimney whether the flue lining had been cut through. He said it would have been necessary for him to have felt in the chimney four or five inches to have found that the tile lining had not been cut through. He ran the smoke pipe about two inches in the hole and as the tile lining had not been cut through, there was no draft and no place for the smoke to escape in the chimney.

Mr. Klein testified that Mr. Dougherty estimated the furnace for them and he hired him to install it, leaving the details of the work entirely to him. Mr. Klein said he pointed to the place where the smoke pipe was to be put. He did not know that the flue lining had not been cut. He further said he had...