Schear v. Motel Management Corp. of America

• Decision Date: 01 September 1984
• Docket Number: No. 673,673
• Citation: 487 A.2d 1240,61 Md.App. 670
• Parties: Herbert SCHEAR, et al. v. MOTEL MANAGEMENT CORPORATION OF AMERICA, et al. ,
• Court: Court of Special Appeals of Maryland

Page 670

61 Md.App. 670

487 A.2d 1240

Herbert SCHEAR, et al. v. MOTEL MANAGEMENT CORPORATION OF AMERICA, et al.

No. 673, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Feb. 14, 1985.

L. Palmer Foret, Rockville (William J. Carter and Carr, Goodson & Lee, P.C., Rockville, on brief for appellant, Travelers Insurance Company, Kenneth J. Annis, Washington, D.C., on brief for appellants, Herbert and Blanche Schear), for appellants.

M. Michael Cramer, Rockville (Janet M. Nesse, Rockville, on brief for appellees, Norman Craig and Chevy Chase Motel Associates, William H. Clarke, Rockville, for appellees, Holiday Inns, Inc. and Motel Management Corporation of America), for appellees.

Argued before MOYLAN, ADKINS and BLOOM, JJ.

BLOOM, Judge.

Herbert Schear, his wife, Blanche, and their insurer, Travelers Insurance Company (Travelers), appellants, filed a civil action in the Circuit Court for Montgomery County against the appellees, Motel Management Corporation of America, Chevy Chase Motel Associates, Norman Craig and Holiday Inns, Incorporated, asserting that jewelry, furs and clothing owned by the Schears had been stolen from their room at the Holiday Inn in Chevy Chase.

Holiday Inns, Incorporated (Holiday) had granted a franchise to Chevy Chase Motel Associates (Associates), the owner of the hotel in question. Associates, in turn, contracted with Motel Management Corporation of America (Management) to operate and manage the hotel; Norman Craig, the manager of the hotel, was employed by Management.

Judge William Miller, who presided at the trial, granted Holiday's motion for directed verdict at the end of the plaintiffs' case. He granted Craig's motion for directed verdict at the close of all the evidence. The jury returned a verdict in favor of Associates and Management.

Appellants contend:

1. The trial judge erred to the substantial prejudice of appellants when he refused to allow admission into evidence of computer print-outs generated by the Montgomery County Police, listing reported criminal activities at the Holiday Inn in Chevy Chase, Maryland.

2. The trial judge erred to the substantial prejudice of the appellants when he instructed the jury on the doctrines of contributory negligence and assumption of risk.

3. The trial judge erred to the appellants' substantial prejudice when he refused to admit into evidence the Holiday Inn loss prevention manual and advertisements pertaining to Holiday Inns and whether he subsequently erred by granting motions for directed verdict on behalf of Holiday Inns, Inc., and Norman Craig.

4. The judge below erred to the appellants' substantial prejudice when he instructed the jury that the Maryland innkeepers' statute could apply in the instant case and when he refused to instruct the jury as to the effect of negligence of the hotel on the application of the innkeepers' statute.

5. The trial judge erred to the appellants' substantial prejudice when he ruled that notes made by a defense security expert need not be produced for use by the plaintiffs at trial.

6. The trial judge erred in not allowing counsel for Travelers to inquire of Detective Calarco if in the course of the police investigation following the burglary Mr. Evans was ever arrested by the police in connection with the theft of the Schears' property.

Rejecting each of these contentions, we affirm the judgment of the circuit court.

Facts

In preparation of a visit to the Washington, D.C. area to celebrate their grandson's bar mitzvah, Mr. and Mrs. Schear, residents of Dayton, Ohio, reserved the entire twelfth floor of the Holiday Inn in Chevy Chase for early December 1979 for themselves and various other members of their family. The Schears, who traveled extensively, usually stayed at this hotel whenever they came to the Washington area to visit either of their grown daughters. They had previously rented the entire twelfth floor in 1977 for another grandson's bar mitzvah. Since that time, the Schears estimated that they had stayed at the Chevy Chase Holiday Inn ten or twelve times. They always requested the same room, room 1212.

When Mr. Schear called the hotel in 1979 to place his reservation, he spoke to Mr. Craig, the hotel manager. Craig had made the arrangements on the previous occasion when the Schears had reserved the entire twelfth floor, and Mr. Schear asked Craig if it would be possible to make the same arrangements for this visit. Mr. Schear testified that, after discussing the security measures available at the hotel with Craig, he decided to hire an additional security guard for December 7 and 8 to protect himself and his wife and their guests against break-ins. He had also employed a private security guard in 1977. On neither occasion, however, did he or his wife inform anyone at the hotel of the amount of valuables that they would be carrying with them.

The Schears arrived at the hotel in the early afternoon of December 5, 1979. Mr. Schear testified that he and his wife were carrying an "extraordinary" amount of jewelry ¹ with them, in addition to furs and clothing that they intended to wear during their stay. Mr. Schear asserted that he had previously telephoned a Washington area jeweler named Brett Evans about the possibility of selling some jewelry and that he and his wife had brought the jewelry to Washington in the hope that Evans would have located some purchasers for it. Mr. Schear telephoned Evans upon arriving at the hotel and left a message that he had arrived with "the items." That message also included the Schears' hotel address, room number and phone number. When Mr. and Mrs. Schear left the hotel later that afternoon, with their jewelry in their luggage in their room, Mr. Schear locked the hotel room door and placed his keys on the front counter for the desk employee, as he customarily did when staying at that hotel. The Schears had not hired a private security guard for December 5; the hotel security procedures called for twenty-four hour surveillance by a single guard. Upon returning to their hotel room that evening, the Schears discovered that their jewelry, Mr. Schear's fur coat, three pieces of luggage, and a number of suits belonging to Mr. Schear had been stolen.

I. Admissibility of Computer Print-Outs

Appellants assert initially that the trial court erred in refusing to admit into evidence certain computer print-outs. These print-outs, which were compiled by the Montgomery County Police Department, listed crimes that had been reported to and investigated by the police as having occurred at or in the vicinity of the Chevy Chase Holiday Inn. Appellants argue that the print-outs were relevant to establish that the hotel and its management had knowledge of a high incidence of reported crime at the hotel but failed to take reasonable steps in prevention thereof. Although they concede that the print-outs constitute hearsay, in that they were offered to prove the truth of the matter asserted therein, appellants argue that they are admissible under the written business record exception and the public records exception to the hearsay rule.

The business record exception is contained in Md.Cts. & Jud.Proc.Code Ann. § 10-101(b), which provides that "[a] writing or record made in the regular course of business as a memorandum or record of an act, transaction, occurrence, or event is admissible to prove the act, transaction, occurrence or event." Appellants correctly observe that police accident reports are admissible under this exception, Levine v. Beebe, 238 Md. 365, 209 A.2d 67 (1965), and that summaries or compilations of business records may similarly be admissible, Smith v. Jones, 236 Md. 305, 203 A.2d 865 (1964).

The print-outs that appellants sought to introduce, however, are not accident reports; they are merely lists of unverified complaints of crimes made by unidentified individuals. The attempt to characterize the print-outs as admissible police reports is based upon the fact that the only crime reports included in the compilation are those in which a police officer investigated the complaint. It is clearly established, however, that police investigative reports are admissible under the business records exception only to the extent that information contained therein is within the personal observation of the investigating officer and that any information based upon hearsay is inadmissible. Holloway v. Eich, 255 Md. 591, 258 A.2d 585 (1969); Kuhl v. Aetna Casualty & Surety Co., 51 Md.App. 476, 443 A.2d 996 (1982); Honick v. Walden, 10 Md.App. 714, 272 A.2d 406 (1971). As the trial judge noted, since the reported crimes contained in these print-outs were not based upon the personal observations of the investigating officer, they constitute hearsay that is inadmissible under the business records exception.

The print-outs are also inadmissible under the public records exception for a similar reason. Md.Cts. & Jud.Proc.Code Ann. § 10-204 states that

[a] copy of a public record, book, paper, or proceeding of any agency of any state or of any of its political subdivisions or of an agency of any political subdivisions shall be received in evidence in any court if certified as a true copy by the custodian of the record, book, paper, or proceeding, and if otherwise admissible.

(emphasis added).

In order to fall within this exception, a writing must not only be a public record but must be "otherwise admissible" under the hearsay rule. It is unnecessary for us to determine whether these print-outs would qualify as public records; being based on hearsay, they were inadmissible in any event.

There is a further basis for excluding these computer print-outs. As Judge Miller correctly observed when appellants asserted that the print-outs were necessary to prove the innkeeper's knowledge of the high incidence of crime occurring on the hotel's premises, the print-outs did not reflect the number of crimes that actually occurred. Evidence, to be admissible,...