Nicholson v. Blanchette

• Decision Date: 03 June 1965
• Docket Number: No. 274,274
• Citation: 210 A.2d 732,239 Md. 168
• Parties: , 14 A.L.R.3d 525 Louis S. NICHOLSON v. Sadie A. BLANCHETTE and William A. Blanchette.
• Court: Maryland Court of Appeals

Page 168

239 Md. 168

210 A.2d 732, 14 A.L.R.3d 525

Louis S. NICHOLSON v.Sadie A. BLANCHETTE and William A. Blanchette.

No. 274.

Court of Appeals of Maryland.

June 3, 1965.

John L. Schroeder, Bethesda, for appellant.

George H. Eggers, Silver Spring (Arthur V. King, Rockville, on the brief), for appellees.

Before HAMMOND, MARBURY, SYBERT, OPPENHEIMER and BERNES, JJ.

BARNES, Judge.

The appellant, Louis S. Nicholson(defendant) was the defendant below in an action at law instituted by the appellees, Sadie A. Blanchette(Sadie) and, her husband, William A. Blanchette(William), as plaintiffs below, to recover for Sadie's personal injuries.(Count I of the declaration) and for William's property damage and damages suffered by him from his wife's injuries, resulting from the negligent operation of an automobile by the defendant, (Count II).The injuries occurred on June 27, 1960 when the defendant drove his automobile into the rear of an automobile owned jointly by the plaintiffs and driven by the plaintiffs' daughter, Mary Ellen Blanchette, in which Sadie was a passenger on the right front seat of that automobile.Sadie suffered severe injuries to her right shoulder, neck and arm and incurred substantial doctors' bills, hospital bills and other expenses.The damages claimed in Count I were $100,000 and in Count II, $50,000.The case was tried before Judge Moorman and a jury.The jury returned verdicts for $20,000 for Sadie and for $15,000 for William; judgments were duly entered upon those verdicts after the trial court had overruled motions for a new trial, judgment n. o. v., and for a remittitur which had been timely filed by the defendant.

The defendant, as appellant in this Court, complains of six alleged errors.They are:

1.The remarks and actions of the trial judge were prejudicial to the defendant.

2.The trial court erred in its treatment of the mention of the ad damnum clause in the opening statement and closing arguments on behalf of the plaintiffs.

3.The trial court erred in refusing to grant the motion of the defendant to strike out the testimony of Dr. Rizzoli.

4.The trial court erred in admitting into evidence certain hospital and doctors' bills and certain testimony allegedly not in conformance with the pleadings.

5.The trial court erred in instructing the jury.

6.The trial court erred in overruling the motion of the defendant made in accordance with Maryland Rule 243(b) and in refusing with Maryland Rule 243(b) and in refusing to instruct the jury to limit the damages of the plaintiffs to their motor vehicle.

We have concluded that the trial court did not commit prejudicial error and that the judgments must be affirmed.We will consider the six points raised by the defendant in the order above set forth.

I.

Counsel for the defendant made a motion for a mistrial because counsel for the plaintiffs during the opening statement to the jury mentioned that the plaintiffs were asking for $100,000 damages.The record indicates that prior to this motion, counsel for the defendant had made two other motions which had been overruled by the trial court, i. e., 1) 'that the plaintiffs in presenting evidence and testimony be limited strictly to the Declaration which is in the file' and 2) 'that with respect to Count Two that no proof be offered with respect to claim for loss of consortium or services by the husband because none of that is mentioned in Count Two of the Declaration which sets forth the husband plaintiff's claim.'Then follow the remarks of counsel for the defendant and the court:

Counsel: 'Your Honor, I ask you to make sure that my motion is on the record.The Court has admonished me, in front of the jury, in a harsh tone, to return to the Bench and I am perfectly willing to return to the Bench but I have a right to protect my client's interest and that is what I have to do and I regret that I have to make this motion but I think I am entitled to a new trial on the previous motion, and I make another motion for a mistrial because of your admonishment of me in front of the jury, in harsh tones.'

THE COURT: 'Mr. Schroeder, you made your objection.The Court called you up to the Bench and did admonish counsel for the plaintiff, in effect, to be a bit more circumspect in his argument.It was perfectly obvious to you that the Reporter was recording everything that was on your objection, as well as the motion that was over-ruled.Twice the Court over-ruled the motion.Three times you said, in a loud, impudent voice, that you wanted your objections and the rulings recorded.It was obvious that they were being recorded.

'The only reason the Court doesn't cite you for contempt is because of your obvious instability and over-excitement.'

The record indicates that the remarks of the trial court, above quoted, were made at a bench conference and there is nothing to show that they were heard by the jury.The defendant has not sought to correct the record under Maryland Rule 827, so that we must assume that the record is correct.We notice that in another portion of the record at a subsequent bench conference, the trial court requested counsel to lower their voices so that the jury would not hear the colloquy between court and counsel.We must assume that these remarks were not heard by the jury.If not heard by the jury, the remarks obviously could not have prejudiced the outcome of the trial.Even if they had been heard by the jury, and the question of possible prejudice were before us, it would appear that these remarks would not constitute reversible error.Cf. General Automobile Owners' Ass'n v. State, to use of Penn, 154 Md. 204, 212-213, 140 A. 48(1928).

The defendant also complains that the remarks of the trial court during rulings on evidence and motions during the course of the trial showed that the trial court indicated that he was favorable to the plaintiffs and hostile to the defendant.It is not necessary to set out these remarks in detail.There is no doubt that the trial court in this case maintained a 'tight rein' on both counsel for the plaintiffs and for the defendant.The trial court's remarks in his rulings were often positive and colorful, but the whole record indicates to us that they were applied impartially to counsel for both parties and that they indicate no prejudice against, or favoritism toward, either of the parties.SeeTaylor v. City of Berwyn, 372 Ill. 124, 22 N.E.2d 930(1939) in which it was held that no prejudice on the part of the trial court against one of the parties was shown by the admonition by the trial court of the attorneys for both sides following heated statements that unless they conducted themselves properly, it would be necessary to find one of them for comtempt in the presence of the jury.

In any event, counsel for the defendant made no objection on the ground of impropriety of the remarks or any prejudice to the defendant either when the remarks were made or even in the defendant's motion for a judgment n. o. v., for a new trial or for a remittitur.We do not think the defendant has preserved any point in regard to the remarks which we may consider on appeal.SeeMaryland Rule 885;Tufts v. Poore, 219 Md. 1, 15, 147 A.2d 717(1959).

Nor does the defendant point to any prejudice resulting to the defendant from the trial court's remarks.A review of the entire record indicates to us that there was no such prejudice.

Finally, even if we were to assume for the argument only that some of the remarks might have indicated to the jury that the trial court had an opinion in regard to certain facts, this was dispelled by the instruction of the trial court to the jury in which the trial court stated:

'Now, during the course of this trial it has been the Court's duty, as a matter of law, to rule upon questions of evidence.Those rulings should not concern you, and I instruct you that neither by these instructions nor by any ruling that I have made do I, or have I, intended to reflect my opinion in relation to the facts.And if by these instructions, or any ruling or tone of voice, or other conduct you may have gleaned the idea that the Court had an opinion in relation to the facts, you are instructed to totally disregard them.'SeeWestern Maryland Dairy Corporation v. Brown, 169 Md. 257, 181 A. 468(1935).

II.

In the opening argument of counsel for the plaintiffs reference was made that the plaintiffs claimed $100,000.This was the amount of the ad damnum clause in Count I of the declaration, setting forth the claim of Sadie.Counsel for the defendant made a timely motion to declare a mistrial which the trial court overruled.After the trial court's instructions to the jury, counsel for the defendant moved that the plaintiffs' counsel be instructed to refrain from mentioning the ad damnum clause in his final argument.This motion was also denied by the trial court, and an exception was noted.In his closing argument, counsel for the plaintiffs mentioned to the jury the amount claimed in Count I ($100,000) and Count II ($50,000) and a timely objection was made and overruled by the trial court.No specific instruction on this aspect of the case was requested by the defendant.The trial court in the charge to the jury stated:

'Now you determine the facts, of course, from the evidence.The evidence consists of the testimony of witnesses that came to you under oath from the witness stand, and the exhibits that were introduced.The argument, statements and remarks of counsel does not constitute evidence, and any statement, remark or argument of counsel not based in the evidence should be totally disregarded by you.'

Later in the charge, the trial judge instructed the jury '* * * you, the jury, should allow her such sum of money as will, in your opinion, be fair and just compensation for the injuries she sustained as a result of the accident,' and, still later in the charge 'then you may award damages which, in your opinion, would be...