Moon v. Weeks

• Decision Date: 18 March 1975
• Docket Number: No. 648,648
• Citation: 25 Md.App. 322,333 A.2d 635
• Parties: Lester MOON et al. v. Richard Ira WEEKS.
• Court: Court of Special Appeals of Maryland

Page 322

25 Md.App. 322

333 A.2d 635

Lester MOON et al. v. Richard Ira WEEKS.

No. 648.

Court of Special Appeals of Maryland.

March 18, 1975.

William W. Grant, Oakland, for appellants.

W. Dwight Stover, Oakland, for appellee.

Argued before ORTH, C. J., and MENCHINE and MOORE, JJ.

ORTH, Chief Judge.

This appeal turns on the answer to the question what, in the contemplation of the traffic laws, is a child on a sled travelling on a street-a 'vehicle', a 'motor vehicle', or a 'pedestrian'. ¹

STATEMENT OF THE CASE

Before we can answer this keystone question we must ascertain the posture of the case as it is before us on appeal. The true posture is not readily evident because the proceedings below were snarled. They were snarled because both the trial judge and counsel for the parties apparently did not recognize, and certainly did not follow, an applicable rule of the Maryland Rules of Procedure.

The Maryland Rules provide ways by which a civil action may be disposed of at trial by the court without being submitted to the trier of fact. ² There is one rule in this context for jury trials and another rule for non-jury trials.

Rule 552 concerns an action tried by a jury. Section a provides that in such an action a party may move, at the close of the evidence offered by an opponent or at the close of all the evidence, for a directed verdict in his favor on any or all of the issues. Section b permits a party, whose motion for a directed verdict at the close of evidence offered by an opponent was not granted, to offer evidence, but by so doing he withdraws the motion.

Rule 535 concerns a civil action tried without a jury. It provides that a party may, at the close of evidence offered by an opponent, move for a dismissal on the ground that upon the facts and law the opponent has shown no right to relief. If such a dismissal is granted, it operates as an adjudication upon the merits, unless the court otherwise specifies. In the event the motion is not granted, the party making it does not waive his right to offer evidence.

It is manifest that a motion for a directed verdict, applicable in a jury trial, may be made at the close of evidence offered by an opponent or at the close of all the evidence, but that a motion to dismiss, applicable in a non-jury case, is, as we pointed out in Quinn Freight Lines v. Woods, 13 Md.App. 346, 350, 283 A.2d 624, 627, 'in order only at the conclusion of the opponent's case and not at the conclusion of the entire case.' Our observation followed the teachings of the Court of Appeals. In Smith v. State Roads Commission, 240 Md. 525, 214 A.2d 792, it discussed the motion to dismiss and the motion for a directed verdict. Stating that it was not proper for a party to move to dismiss at the close of all the evidence but was proper only at the close of his opponent's evidence, it said, at 539-540, 214 A.2d at 800:

'The main purpose of the rule (Rule 535) is to allow a party to test the legal sufficiency of his opponent's evidence before submitting evidence of his own. Should he prevail at this point he avoids the necessity of going further and as well the risk that his own evidence may supplement his opponent's evidence enough to provide the missing legal sufficiency. If he waits until the close of all of the evidence then the motion becomes a nugacity because all of the evidence is then before the trier of facts and the determination of its legal sufficiency becomes an inseparable and necessary part of his decision. In jury cases, where a different climate prevails, a motion for a directed verdict offered at the close of all of the evidence gives the trial judge an opportunity to make a quantitative evaluation of the evidence, not to inform any decision to be made by him, but only to assess the propriety of allowing the jury to make findings of fact. The jury does the deciding; the judge simply sees to it that they have enough material to work with.'

This was iterated by the Court in Lewis v. Germantown Insurance Company, 251 Md. 535, 540-541, 248 A.2d 468. Although rule 535 says nothing about a waiver of the motion to dismiss, if upon its denial evidence is offered by the party making the motion, it necessarily follows that it is waived upon the offering of evidence. This is so because there is then a different quantum of evidence before the court, the legal sufficiency of all of which becomes, as the Court said in Smith, supra, 'an inseparable and necessary part' of the court's decision.

There has been an unfortunate tendency on the part of both bench and bar to ignore the distinctions between Rule 535 and Rule 552. This was forcefully pointed out by the Court of Appeals in Isen v. Phoenix Assurance Co., 259 Md. 564, 569-570, 270 A.2d 476, 479:

'In Smith v. State Roads Commission, 240 Md. 525, 539, 214 A.2d 792 (1965), we pointed out that in actions tried by the court without a jury a 'motion for a directed verdict' is not a proper motion. We explained carefully and at length that Rule 535 'was designed especially for non-jury situations.' We noted in Duck v. Quality Custom Homes, Inc., 242 Md. 609, 611, 220 A.2d 143 (1966), an appeal from the Circuit Court for Montgomery County, that Rule 535 had not been complied with. In Southwestern Mines, Inc. v. P. & J. Coal Company, Inc., 244 Md. 180, 184, 223 A.2d 162, 164 (1966), we said 'this (a motion for a directed verdict) is not a proper motion.' In Lewis v. Germantown Insurance Company, 251 Md. 535, 536-537, 248 A.2d 468 (1968), another appeal from the Circuit Court for Montgomery County, we chided the bar for its disregard of the Maryland Rules, especially Rule 535. We cited nine cases in each of which some mention had been made of the bar's dereliction in this regard. In Antietam-Sharpsburg Museum, Inc. v. William H. Marsh, Inc., 252, Md. 265, 267, 249 A.2d 721, 722 (1969), we said, 'Once again we remind both bench and bar that the motion for a directed verdict, in these circumstances, is improper. Maryland Rule 535.' (Emphasis added.) Perhaps we should expect that there will always be some members of the bar who will be unaware of the Rules and our decisions concerning them but one would suppose that, by now, trial judges, being fully informed, would either reject or refuse to act upon such improper motions. That we have chosen once more to twit both bench and bar in this regard should not provoke speculation that we have done so for any reason other than to focus attention upon the Rules and to remind all hands that they are not guides to the practice of law but precise rubrics 'established to promote the orderly and efficient administration of justice and (that they) are to be read and followed.' Brown v. Fraley, 222 Md. 480, 483, 161 A.2d 128, 130 (1960).'

That there are some who have not yet received the message is apparent from the case before us.

On 7 October 1969 Lester Moon et uxor and Lester Moon as next friend and natural guardian of Kathryn Marie Moon (Moon) instituted an action in tort in the Circuit Court for Garrett County against Richard Ira Weeks (Weeks). The action was tried without a jury on 18 June 1974. At the close of evidence offered by Moon, Weeks moved for a directed verdict. The motion was denied. A motion for a directed verdict was made again at the close of all the evidence. It was then granted. Moon noted an appeal on 5 July 1974. We dismissed the appeal nostra sponte as premature because no final judgment had been entered. On 22 August 'final and absolute judgment' in favor of Weeks was entered by order of the court below, with further order that Moon pay the costs. We consider this as a final judgment in favor of Weeks for costs. On 20 September Moon appealed from the judgment. It is this appeal which is now before us. ³

In Isen the Court declared, 259 Md. at 570, 270 A.2d at 479, that although at times in the past it had not dismissed an appeal because of disregard of Rule 535, '(i)t must not be supposed', quoting Lewis, 251 Md. at 543, 248 A.2d 468, 'that the same degree of forbearance will be displayed, in the future, in respect of a similar disregard of the Maryland Rules.' We observe that under Rule 886, applicable to the Court of Appeals, and under Rule 1086, applicable to this Court, a non-jury case will be reviewed upon the law and the evidence. Such review by the appellate court is in nowise dependent upon a motion made under Rule 535. Therefore, we do not even consider dismissing the appeal. To dismiss the appeal for disregard of Rule 535 in these circumstances, would, in any event, accrue to the benefit of the party who failed to heed the Rule, and this would result in a palpable injustice.

ISSUE FOR DECISION

The propriety of the grant of the motion (which we treat as a motion to dismiss) on which the judgment was entered is not before us. As we have seen, it was a nugacity because made at the close of all the evidence. Thus, we deem that the action was decided on the merits. What is before us, therefore, is whether the trial judge was right or wrong in rendering a judgment in favor of Weeks and against Moon. There are two aspects in the consideration of this. The first concerns the law and the second concerns the evidence. The first aspect is whether the court below was erroneous in its application of the law. The second aspect is whether it was clearly erroneous in its judgment on the evidence. Rule 1086. Knowles v. Binford, 268 Md. 2, 298 A.2d 862. ⁴

THE FACTS

Tallahassee Street, running east and west, and Shenandoah Avenue running north and south, intersect in a residential area in the town of Loch Lynn, Garrett County, Maryland. Tallahassee Street has a descending grade from east of its intersection with Shenandoah Avenue through its intersection with Roanoke Street, parallel to and a block west of Shenandoah Avenue. On 2 December 1966 there were no traffic control signs or devices at the intersection of Tallahassee Street and Shenandoah Avenue. There was a street...