Little v. Duncan

• Decision Date: 22 December 1971
• Docket Number: No. 330,330
• Citation: 284 A.2d 641,14 Md.App. 8
• Parties: Walter O. LITTLE et al. v. Evelyn DUNCAN et al.
• Court: Court of Special Appeals of Maryland

Page 8

14 Md.App. 8

284 A.2d 641

Walter O. LITTLE et al. v. Evelyn DUNCAN et al.

No. 330.

Court of Special Appeals of Maryland.

Dec. 22, 1971.

William O. Goldstein, Baltimore, for appellants Walter Little and Arthur Taylor.

William Clague, Washington, D. C., for appellee Evelyn Duncan with whom was Francis C. O'Brien, Washington, D. C., on brief.

Paul M. Parent, Silver Spring, for appellee Theodore Murphy with whom was Parent & Kelly, Silver Spring, on brief.

Argued before ANDERSON, THOMPSON and GILBERT, JJ.

GILBERT, Judge.

Walter O. Little (Little) and Arthur Taylor (Taylor), appellants, were passengers in a motor vehicle operated by Theodore L. Murphy (Murphy), appellee, when it was involved in a collision with an automobile operated by Evelyn Duncan (Duncan), appellee. At the trial of appellants' suit against Murphy and Duncan, the jury rendered verdicts for both drivers as against passengers-appellants. A motion for a new trial, requested by appellants, was denied by the trial judge.

Appellants attack the judgment of the trial court on a tripartite basis:

I. A denial of a fair and impartial trial by, what they believe to be, damaging prejudicial statements and conduct of counsel for the appellee Duncan.

II. The commission of reversible error by a refusal of the trial judge to instruct the jury that 'either one or the other, or both of the defendants must be negligent.'

III. Additional reversible error committed by the trial judge in refusing to allow the appellants' attorney to argue the question of 'permanent disability' to the jury.

Duncan testified that on August 10, 1968, it was raining heavily and she was operating a motor vehicle in an easterly direction on Sheriff Road in Prince George's County, and intended to turn left at Harvey Drive. She stated that she had stopped on Sheriff Road close to the center line and had turned on her left blinker light when she was struck in the left rear fender by a motor vehicle operated by Murphy. The appellants were in the Murphy car. Little was seated in the right rear of Murphy's car and Taylor was in the right front. Duncan stated that at the time she stopped her motor vehicle she saw the lights of another car approximately 100 yards away and that she still saw the lights when she started to make her turn into Harvey Drive. Murphy related to the jury that he was operating his vehicle in an easterly direction on Sheriff Road and as he came over the crest of a hill he saw the Duncan vehicle in the left lane. He said that Sheriff Road accommodates two lanes of traffic on one-half of the road, that is to say, it would accommodate four lanes of traffic in total, two east bound and two west bound, divided by a center line. Murphy said that Duncan was to the right side of the roadway and stopped, and just as he was ready to pass her she pulled into the left lane. At the time she pulled into that lane he was approximately 20 to 25 feet from her. The vehicles collided. Murphy also stated that his speed at the time was 25 to 30 miles per hour. Little told the jury that he observed the Duncan car slow down and pull to the right as the Murphy vehicle approached it. He then said that Duncan pulled to the left and there was no turn signal operating on the Duncan vehicle. He corroborated Murphy's estimate of speed. Taylor's testimony was similar to that of Little.

Little testified as to the injuries he sustained from the impact. Little stated that following the accident his neck and the upper part of his back and right knee were 'stiff'. He was treated by a duly licensed chiropractor. He lost no time from work. His complaint at the time of the trial was that he had to lie down in a certain manner. Taylor informed the jury that he had injured his neck and shoulders and he was treated by the same chiropractor as Little. Taylor likewise lost no time from work, and his complaint at the time of the trial was that his neck still pained him sometimes when he lay down to rest and when he arose in the morning.

In opening statement counsel for Duncan commented upon a previous trial wherein the appellee Murphy had been the plaintiff and the appellee Duncan the defendant. Duncan's counsel told the jury that Duncan 'successfully defended her claim, defended her case against Mr. Murphy, but in that trial, and we have excerpts of proceedings, a specific question was asked of Mr. Taylor, 'Were you injured in this accident?' to which he denied he was injured. Was Mr. Little injured in this accident? They denied they were injured.' No objection was interposed at this point.

Duncan was called as an adverse witness by the plaintiffs below (appellants here), and on cross-examination was asked whether or not she recalled the trial of Murphy's claim against her. She responded in the affirmative. The following then transpired:

'Q. Do you recall, do you not, that both Mr. Little and Mr. Taylor both testified as witnesses for Mr. Murphy in this case, do you not?

A. Yes.

Q. Do you recall then being asked a question whether they were or were not injured?

A. Yes.

Q. Do you recall what their answer was under oath on the stand?

A. Yes.

Q. What was it?

A. They did not get hurt.

MR. GOLDSTEIN: Objection. Move it be stricken, your Honor.

THE COURT: She was here. She heard the testimony. That would be original testimony. The objection is overruled.

BY MR. O'BRIEN:

Q. Now, do you also remember-

THE COURT: I expect you to follow that up, though.

MR. O'BRIEN: Oh, I will, Your Honor. As a matter of fact, I'm going to offer this total thing into evidence.

THE COURT: I don't want the total thing in.

MR. O'BRIEN: It's just about that testimony.

THE COURT: Yes.'

'MR. O'BRIEN: * * *. The question was that I was asking at the particular time Mr. Taylor this question, 'It is true that you were not injured?' The answer was, 'yes.' Do you remember that answer?

A. Yes.

MR. O'BRIEN: All right. 'It is also true that Mr. Little was not injured, isn't that true?' This is Mr. Taylor. The answer was, 'yes.'

MR. GOLDSTEIN: Objection.

WITNESS: Yes.'

After an exchange between counsel and the court, Duncan's attorney withdrew that portion of the questions dealing with Taylor's response relative to Little's injuries.

In the cross-examination of Murphy, Duncan's attorney again alluded to the previous suit. Appellants' attorney requested the court to instruct the jury to disregard the comment.

'Q. You lost the case, didn't you?

MR. GOLDSTEIN: Objection.

MR. PARENT: Objection.

THE COURT: Sustained.

MR. GOLDSTEIN: Your Honor, I wish you would instruct the jury.

THE COURT: * * * you will disregard that completely. That has nothing to do with this case.'

Counsel for appellants then stated:

'Your Honor, further I wish you would tell him my clients were witnesses, so I think he tried to infer to the jury his client was in the right, and I think the whole thing was improper.

THE COURT: I told them to disregard it completely. I think they know what to do.

BY MR. O'BRIEN:

Q. You say that you were-

THE COURT: They are probably the only ones left that are not confused, I say the jury is probably the only ones left in the courtroom that are unconfused.'

The transcript of the Murphy v. Duncan trial was proffered at the close of the evidence in the case, but upon objection was not received. Out of the presence of the jury it was said:

'MR. O'BRIEN: I got enough out of it anyhow.

THE COURT: You already got it in front of the jury.'

During closing argument to the jury, Duncan's attorney referred to the sole medical witness, a chiropractor, as a 'quackpractor'. The court promptly informed the jury, 'I think it is a chiropractor, members of the jury. He said he was a chiropractor.'

We think it significant to note that not at any time did appellants request or seek a mistrial. Here, appellants argue that, 'A mistrial is always a victory for the insurance company which can still hold its money and face the impecunious attempt to bring medical witnesses to another trial.' We are unpersuaded by this contention. We perceive in this record a question of trial tactics. Appellants' experienced counsel apparently chose not to seek a mistrial, but, on the contrary, to proceed with the case in the belief that his clients' cause would ultimately prevail. As so aptly stated by Judge Powers for this Court in Sobus v. Knisley, 11 Md.App. 134, 142, 273 A.2d 227, 232 (1971):

'The dilemma of counsel * * * is apparent. They were required to judge which would cause more harm to the defendant; * * *. When this tactical decision was made, the die was cast. If it was detrimental, appellant may not complain.'

In Ferry v. Cicero, 12 Md.App. 502, 280 A.2d 37 (1971), this Court held that notwithstanding the fact that a mistrial would have been warranted in view of the improprieties of defense counsel and that the failure to have granted the mistrial would have been an abuse of discretion, we could not reverse where no mistrial had in fact been requested. We do not herein fault the appellants' counsel for not moving for a mistrial because as stated by Judge Powers in Ferry, supra 'We fully understand the dilemma of opposing counsel, requiring instant evaluation of several alternatives. A mistrial would require a new trial, with its attendant delay and expense. An interruption resulting in any action by the judge short of a mistrial may well serve only to emphasize and thus intensify the harm.'

However, inasmuch as no motion for a mistrial was made in the instant case, we see nothing for us to review. Rule 1085.

In so holding, we do not imply that a trial by jury should be allowed to degenerate into the long abolished 'trial by combat.' We think it incumbent upon the trial judge to take steps to assure a fair and impartial trial to the participants in the litigation. Zeal in advocacy is commendable, but zeal, even in advocacy, without bounds may be contemptuous and disruptive.

'Zeal is very blind, or badly regulated, when it encroaches upon the...