Owens v. Simon

• Decision Date: 10 February 1967
• Docket Number: No. 44,44
• Citation: 245 Md. 404,226 A.2d 548
• Parties: Lewis OWENS and Dorothy M. Ernest, etc. v. Ferman SIMON.
• Court: Maryland Court of Appeals

Page 404

245 Md. 404

226 A.2d 548

Lewis OWENS and Dorothy M. Ernest, etc. v. Ferman SIMON.

No. 44.

Court of Appeals of Maryland.

Feb. 10, 1967.

Matthew Swerdloff, Baltimore (Myer E. Grossfeld, Baltimore, on the brief), for appellant, Lewis Owens.

Frank Cannizzaro, Jr., Baltimore (Dashner & Cannizzaro, Baltimore, on the brief), for appellant, Dorothy M. Ernest, etc.

A. Heaton Nash, Baltimore (Thomas D. Washburne, Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES and FINAN, JJ.

FINAN, Judge.

Appellants, Dorothy M. Ernest (plaintiff below) and Lewis Owens (defendant below), have taken this appeal from an order of the Superior Court of Baltimore City granting summary judgment in favor of appellee (defendant below), Ferman Simon.

On June 13, 1964, appellee was involved in an automobile accident with appellant Owens. The accident occurred at the intersection of Pearl and Saratoga Streets in the City of Baltimore when appellee, operating his vehicle north on Pearl Street, failed to halt for a stop sign and collided with a vehicle owned and operated by Owens, traveling in a westerly direction on Saratoga Street. Charles R. Ernest, a Baltimore City police officer, arrived at the scene in response to a call from Owens and proceeded to investigate the accident. Officer Ernest instructed Owens to move his vehicle out of the intersection. When Owens reentered his car, the transmission indicator was in park and the engine was off. Owens turned the ignition key to start the car and the vehicle moved backward. Owens then applied his brakes and shifted the transmission indicator to neutral, whereupon the car moved forward at a rapid rate of speed striking Officer Ernest and appellee Simon who were standing in front of the vehicle. As a result of being hit by Owens' vehicle, Ernest sustained serious injuries from which he died on January 20, 1965, some eight months later.

Appellant Ernest, as a widow and administrator of decedent's estate, filed suit against appellant Owens for personal injuries resulting in the death of her husband. Owens filed a third-party claim against appellee alleging in substance that Simon's negligence in causing the first accident was the sole proximate cause or, in the alternative, a contributing cause of decedent's death. Thereafter plaintiff filed an amended declaration naming both Owens and Simon as defendants. Defendants filed general issue pleas to the amended declaration, and thereafter appellee moved for summary judgment. Answers to the motion for summary judgment, accompanied by supporting affidavits, were filed by the plaintiff and co-defendant. On February 23, 1966, appellee's motion for summary judgment was granted; the lower court finding:

'It is clear to the Court from all the pleadings that there is no dispute of fact as to the part allegedly played by said Defendant, Ferman Simon, regarding the accident. It is also true from said undisputed fact that the alleged negligence on the part of said Defendant was not the approximate (sic) cause of the accident complained of.'

This case presents the following questions to be decided by this Court:

1. Viewing the pleadings, affidavits in support of answers to the motion for summary judgment and the answers to interrogatories, in a light most favorable to the appellants, was it proper for the court to grant appellee's motion for summary judgment? (Rule 610 a)

2. Did the negligence of the appellee Owens breach any duty that he owed to the decedent? and

3. Can any reasonable inference be drawn from the facts to show that the negligence which caused the first accident was the proximate cause of the second accident resulting in the fatal injury to the decedent?

I

A reading of the pleadings, the appropriate answers, the supporting affidavits accompanying them and the answers of Simon to interrogatories filed by Owens, establishes beyond any cavil that there was no dispute between the adversary parties in this tort action, as to any material fact. The matter therefore falls within the purview of Maryland Rule 610 a, which expressly provides for summary judgment where: (1) there is no dispute as to a material fact; and (2) the moving party is entitled to judgment as a matter of law. The Court is of the opinion that both of the aforementioned elements, the presence of which are essential for the granting of summary judgment, are present and satisfied in this case.

One need go no further than Schwiegerath v. Berger, 237 Md. 68, 205 A.2d 290 (1964) and Evans v. Johns Hopkins Univ., 224 Md. 234, 167 A.2d 591 (1961) as authority, both of which involved tort actions. In Schwiegerath, supra, 237 Md. p. 69, 205 A.2d p. 291, the undisputed facts from the pleadings compelled the conclusion as a matter of law that the defendant was entitled to judgment as a favored driver under the Boulevard Rule. Chief Judge Henderson, speaking for the Court, said:

'The declaration was filed by the appellants claiming damages for injuries to Mrs. Schwiegerath, a passenger in a car operated by Mrs. Krebs, against Mrs. Krebs and the operator of a second car, Mr. Berger. After general issue pleas had been filed interrogatories were sought and answered by Mrs. Schwiegerath, Mrs. Krebs and Mr. Berger, and depositions taken. Appropriate motions with supporting affidavits were then filed. A careful reading of the deposition testimony convinces us, as it did the trial court, that there is no genuine dispute as to any material fact, and no question of credibility.'

In Evans, supra, where a student was injured as a result of an explosion in a chemistry laboratory at Johns Hopkins University, the lower court found from the undisputed facts that although it might have appeared that primary negligence existed on the part of the University, the facts spelled out the defense of assumption of risk and this Court, in an opinion by Chief Judge Brune, affirmed the lower court.

The cases relied upon by the appellants, Levine v. Moreland, 229 Md. 231, 182 A.2d 484 (1962) and Summer v. Travelers Indemnity Co., 235 Md. 480, 201 A.2d 775 (1964), are readily distinguishable from the case at bar. Levine, a censorship case, contained a disputed question regarding 'obscenity' and Sumner, concerned with the existence of a public liability insurance policy, turned on an unconceded fact pertaining to agency.

In the instant case the appellants contend that the facts well pleaded show that Simons was guilty of negligence in violating the Boulevard Rule by proceeding through the stop sign on Pearl Street into Saratoga Street thereby colliding with Owens' vehicle damaging its transmission, and that this negligence was the proximate cause of the fatal injury to Officer Ernest. The appellants further contend that the question of proximate cause is a jury question, and quote Judge Burke's opinion in Penn. Steel Co. v. Wilkinson, 107 Md. 574, 582-583, 69 A. 412, 415, 16 L.R.A.,N.S., 200 (1908), wherein he in turn quoted Milwaukee Etc. Railway Co. v. Kellog, 94 U.S. 469, 474, 24 L.Ed. 256 (1876): 'The true rule is that what is proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or legal knowledge.'

As a general rule this is true; but where, as here, there is no dispute as to what actually happened and where reasonable minds can draw but one inference from the facts as presented, the trial court may resolve the issue in dispute as a matter of law. Liberto v. Holfeldt, 221 Md. 62, 67, 155 A.2d 698, 701 (1959); Restatement (2nd), Torts § 434, comment c (1965). Hence we feel that this case was properly one for summary judgment.

II and III

The Court is well aware that the theory of negligence predicated on a breach of duty owed by the defendant to a foreseeable plaintiff, and that of proximate cause have been held distinguishable by courts as well as by eminent legal scholars. McGowans v. Howard, 234 Md. 134, 138, 197 A.2d 915, 917-918 (1964); the helpful opinion of Judge Horney in Liberto v. Holfeldt, supra; Resavage v. Davies, 199 Md. 479, 86 A.2d 879 (1952); and Prosser, Torts, § 49, pp. 282-83, and § 51, p. 320, et seq. (3rd ed. 1964). In reading Prosser one takes away the thought that he would eliminate the theory of proximate causation as a confusing matrix of events, and supplant it with the concept of negligence and the extent of the duty owed.

However, this Court does not believe the two theories are mutually exclusive and as Judge Henderson (later Chief Judge)...