Maged v. Yellow Cab Co.

• Decision Date: 05 January 1965
• Docket Number: No. 104,104
• Citation: 237 Md. 340,206 A.2d 257
• Parties: Frieda MAGED et al. v. The YELLOW CAB COMPANY et al.
• Court: Maryland Court of Appeals

Page 340

237 Md. 340

206 A.2d 257

Frieda MAGED et al. v. The YELLOW CAB COMPANY et al.

No. 104.

Court of Appeals of Maryland.

Jan. 5, 1965.

Paul F. Due, Baltimore (Alfred F. Walker, Baltimore, on the brief), for appellants.

Frederick J. Green, Jr., Baltimore (Alva P. Weaver, III, and Lord, Whip, Coughlan & Green, Baltimore, on the brief), for appellees.

Before PRESCOTT, HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.

HORNEY, Judge.

In this tort action by Frieda Maged (plaintiff or passenger) against the Yellow Cab Company (defendant or cab company) for injuries sustained by her when the cab in which she was riding allegedly made a sudden stop, the questions on appeal concern the admissibility of evidence and the restricting of cross-examination of a witness. Isaac Maged, the husband of the passenger, was also a party plaintiff, and Lester C. Spittel, the cab driver, was also a party defendant. From a judgment for costs entered on the jury verdict for the defendants, the plaintiffs appealed.

The passenger entered the cab on Howard Street in Baltimore City and directed the driver to take her to a dress shop on North Charles Street. According to the passenger, as the cab reached its destination, the driver had difficulty bringing it to a stop. When he stopped, th stop was to sudden that she was thrown off the rear seat against the side of the cab and onto the floor. As a result of the occurrence, she injured her elbow and forearm. According to the cab driver, as he approached the dress shop, he observed a motor vehicle coming out of a parking lot near the shop and slowed down as a precautionary measure, but kept on going when the other vehicle yielded the right of way. At no time did he have difficulty stopping, and he denied bringing the cab to a sudden stop.

The day after the occurrence, the claim manager of the cab company made a memorandum of a telephone conversation between the plaintiff and an employee in the company claim department in which it was recorded that the passenger had said that the cab made a sudden stop because of a 'car either going [in] or coming out of [the] parking lot.' The next day the head of the claim department visited the passenger at her home and obtained a statement signed (but not read) by her affirming that the cab 'either made a sudden stop or a fast start' to avoid striking a motor vehicle coming out of the parking lot.

Prior to the trial, the defendants, in answer to interrogatories served on the cab company and driver by the plaintiffs, stated that an 'oral report only' had been made by an employee of the cab company in the ordinary course of business with respect to the occurrence; that it had 'no other knowledge * * * [of the] alleged accident' other than that the 'passenger was paying her fare when * * * the driver was advised that [she] had bruised her arm' whereupon 'the driver offered to render assistance'; and that the cab driver had made an 'oral report' of the injury sustained by the passenger.

At the trial of the case, the plaintiff, although readily admitting that other portions of the written statement she had given the claim manager were correct, categorically denied, on both direct and cross-examination, that she had told the claim manager anything about a motor vehicle coming out of a parking lot. While still on cross-examination, the plaintiff admitted making a prior claim against the cab company and being paid for a shoe cut as the result of stepping on broken glass inside a cab. She denied, however, having made a complaint to the cab company about another sudden stop several years before for which no claim was made because there had been no injury.

Also at the trial, the cab driver, contrary to the answers to the interrogatories, testified on direct examination, that he had made a report in writing of the passenger's complaint to him. While he testified to this, there was an intimation that he may have been mistaken. Although inquiry was made as to the whereabouts of the written report if there was one, it was not produced. Instead counsel for the company suggested that the passenger should seek discovery under the applicable rules of procedure, but this was not done.

After the passenger and cab driver had testified, the cab company called its claim manager. Over objection, the court, despite the fact that the defendants, in answer to the interrogatories, had denied the existence of written records made in the ordinary course of business, permitted the claim manager to produce the memorandum he had made of the telephone conversation between the plaintiff and a company employee. The court also allowed the cab company, over objection, to introduce evidence from its claim files tending to impeach the testimony of the plaintiff denying that she had ever made a previous complaint based on a sudden stop.

When the claim manager was cross-examined as to whether he had received any information, either verbal or in writing, from the cab driver before obtaining the written statement from the passenger, he replied that he did not recall. Then, when he was asked whether he remembered that the cab driver, while testifying, had denied that the incident occurred in the manner described in plaintiff's statement, counsel for the cab company objected and the objection was sustained. When asked if he remembered receiving either a verbal or written report from the driver respecting the complaint of the passenger, the witness replied, after an objection to the question was overruled, that he did not recall a report from the driver 'coming through in the ordinary course of business.' Except for inquiries as to what was ordinarily done with reports received in the ordinary course of business, that ended the cross-examination.

In essence, it is contended on appeal that the trial court erred: (i) when it permitted the cab company to produce and use the memorandum of the telephone conversation between the plaintiff and a claim department employee and did not require the company to disclose the written report of the cab driver; (ii) when it admitted evidence of a previous complaint the plaintiff had made concerning another sudden stop for which no claim was made; and (iii) when it refused to allow unrestricted cross-examination of the claim manager with regard to inconsistencies between the testimony of the cab driver and the answers to the interrogatories, on the one hand, and the statement taken by the claim manager from the passenger, on the other hand.

(i)

The first contention of the plaintiff, and the one on which the most emphasis was placed, is that it was error for the trial court, in view of the answers to the interrogatories, to permit the production and use of the memorandum of the telephone conversation as evidence. We agree. The record, however, shows that its use was not so prejudicial as to require a reversal.

The memorandum, which for the purposes of this case we assume was a record made in the ordinary course of business, should have been disclosed in...