Price v. Miller

• Decision Date: 10 January 1934
• Docket Number: 41.
• Parties: PRICE v. MILLER.
• Court: Maryland Court of Appeals

169 A. 800

165 Md. 578

PRICE v. MILLER.

No. 41.

Court of Appeals of Maryland

January 10, 1934

Appeal from Court of Common Pleas of Baltimore City; Samuel K Dennis, Judge.

Action by B. Wilson Price, to his own use and to the use of General Exchange Insurance Corporation, against Morris Miller. Judgment for defendant, and plaintiff appeals.

Reversed and new trial awarded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, DIGGES PARKE, and SLOAN, JJ.

Clater W. Smith and Roszel C. Thomsen, both of Baltimore (Walter L Clark, of Baltimore, on the brief), for appellant.

Foster H. Fanseen, of Baltimore (Charles F. Goldberg, of Baltimore, on the brief), for appellee.

DIGGES Judge.

The appellant in this case was the owner of a Chevrolet sedan which came into collision with the car of the appellee (defendant) at the intersection of Hilton and Powhatan streets in the city of Baltimore. The appellant at the time of the accident was not an occupant of his car, which at that time was being driven by his brother, George A. Price. The case was tried before a jury in the court of common pleas of Baltimore city, and resulted in a verdict and judgment for the defendant. It is from that judgment the appeal here is taken.

The single exception contained in the record is to the court's ruling upon the prayers. At the outset of the consideration of the case there is presented the question of what is the record upon which this court must base its conclusion. The original record was filed June 19, 1933, and contained the declaration, the docket entries, certain prayers, and a purported condensation of the evidence as follows:

"Thereupon the plaintiff, B. Wilson Price, produced evidence that on December 31, 1931, the night of the accident at Hilton and Powhatan Streets, he had loaned his Chevrolet automobile to his brother, George A. Price, for his own personal pleasures; that at the time of the accident the said George A. Price was using said automobile to take his friend, Miss Eleanor Talbot, to a dance; that the plaintiff was not in said automobile, nor was he interested, in any manner, in its use by his brother, George A. Price. There was also evidence produced at said trial tending to prove that both George A. Price and the defendant, Morris A. Miller, were guilty of negligence contributing to the happening of the accident complained of, and as a result of which the plaintiff's car was damaged."

This record was thus authenticated: "The aforegoing bill of exceptions approved this 26th day of May, 1933. Samuel K. Dennis."

The record further contains the stipulation between the attorneys for the plaintiff and defendant: "It is stipulated by and between counsel for the plaintiff and defendant that the aforegoing is a true and correct bill of exceptions, subject to the verification by the Clerk of the prayers." This stipulation is signed by the respective attorneys; and the record is certified to by the clerk of the court of common pleas.

Subsequently, on September 22, 1933, there was filed what purports to be a "diminished record," which contains testimony of the witnesses and certain prayers which were omitted from the original record. This diminished record is also certified to by the clerk of the court.

At the argument in this court, counsel for the appellee, defendant below, asked permission to leave with the court what purports to be a typewritten transcript of the entire evidence taken in the trial of the case. There being no objection, this typewritten transcript was left with and is now in the possession of this court. It contains no verification by any one, and is wholly unauthenticated.

These are the facts evidencing the present state of the record.

Under such circumstances, this court cannot consider the contents of the typewritten transcript as a part of the record in this case. Riverdale Presbyterian Church v. Paul B. Pugh & Co., 154 Md. 550, 140 A. 844; Darrin v. Hoff, 99 Md. 491, 58 A. 196; Board of Street Com'rs v. Williams, 96 Md. 232, 53 A. 923; Davis v. O'Berry,

93 Md. 751, 51 A. 1107.

The diminished record contains testimony in the form of questions and answers. It also contains testimony condensed and stated in narrative form. In addition, it contains two prayers. There is no indication that this supplemental record was presented to or approved by opposing counsel; and it is barren of anything which would indicate that it had been submitted to or approved by the trial court. In its present form, it is obvious that it is not a verbatim record of all of the proceedings in the court below, because, as stated, it contains condensed testimony, recited narratively. This court is asked to accept it as being a true record of the proceedings. This we feel we are unwarranted in doing, for the reasons and upon the authority which preclude us from considering the typewritten transcript produced at the argument of the case in this court. Without regard to the past practice, in cases where application is made for diminution of the record, it is evident that good practice requires that the diminished record be authenticated in like manner as the original, otherwise all of the evils attendant upon an unauthenticated record would be present; and the decisions of this court, stating the reasons which necessitate the authentication of the original record, apply with equal force to an unauthenticated diminished record. This requirement entails no hardship upon the parties litigant or the presiding judge, and makes sure of presenting for decision by this court the precise questions considered and passed upon by the trial court. It is impossible for this court to determine whether the diminished record here being considered contains all of the evidence taken below, or whether it contains only such extracts therefrom as the appellee may desire this court to consider.

Coming now to a consideration of the question presented by the original record, which was authenticated by the presiding judge, and also stipulated by counsel for the parties to be a true and correct bill of exceptions, we find it contains a single question for determination, namely, whether or not negligence by a bailee is imputable to the bailor and precludes the latter from recovery against a third party for damage or injury caused to the bailment by the negligence of the third party; or, stated another way, Does the negligence of the bailee contributing to the injury bar...