Shedlock v. Marshall

• Decision Date: 15 March 1946
• Docket Number: 101-104.
• Citation: Shedlock v. Marshall, 186 Md. 218, 46 A.2d 349 (Md. 1946)
• Parties: SHEDLOCK v. MARSHALL (two cases). MILLER v. MARSHALL et al. SHEDLOCK v. MILLER et al.
• Court: Maryland Court of Appeals

46 A.2d 349

186 Md. 218

SHEDLOCK v. MARSHALL (two cases).

MILLER v. MARSHALL et al.

SHEDLOCK v. MILLER et al.

Nos. 101-104.

Court of Appeals of Maryland

March 15, 1946

Appeals in One Record from Superior Court of Baltimore City and Baltimore City Court; W. Conwell Smith, Chief Judge.

Suit by Joseph T. Shedlock against J. Norman Marshall, trading as Marshall's Express Company, for personal injuries and property damage resulting from a collision between plaintiff's automobile and defendant's tractor-trailer, suit by J. Norman Marshall, etc., against Joseph T. Shedlock for property damage resulting from the same collision, and suit by Lee A. Miller aginst J. Norman Marshall, etc., for personal injuries resulting from the same collision, wherein J. Norman Marshall, etc., filed a third-party complaint against Joseph T. Shedlock, as third-party defendant. A joint hearing on all the matters in issue in the three cases was ordered. From judgments entered on verdicts in favor of J. Norman Marshall, etc., in the first two cases, Joseph T. Shedlock appeals, from a judgment entered on a verdict in favor of J. Norman Marshall, etc., in the third case, Lee A. Miller appeals, and from a judgment entered on a verdict in the same case in favor of Lee A Miller against the third-party defendant, Joseph T. Shedlock appeals.

All judgments affirmed.

Sigmund Levin and Paul Berman, both of Baltimore, for shedlock.

Benjamin Swegel, of Baltimore, for Lee A. Miller (Avrum K. Rifman and Theodore B. Berman, both of Baltimore, on the brief for Shedlock, Jacob Blum, of Baltimore, on the brief for Miller).

Palmer R. Nickerson and W. Hamilton Whiteford, both of Baltimore for Marshall's Express and J. Norman Marshall.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

MARBURY Chief Judge.

On April 20, 1944, about 7:00 a.m., Joseph T. Shedlock was on his way from Baltimore to Sparrows Point, driving his own automobile in which was a passenger, Lee A. Miller, who was associated with him in his work. He proceeded along Monument Street, a public highway in the City of Baltimore, and entered the intersection of that street with the Philadelphia Road, which was a duly marked and established boulevard or arterial highway. Monument Street enters the Philadelphia Road at an acute angle, and Shedlock was driving southeast on Monument Street and intended to go east on the Philadelphia Road. While he was in the intersection, a tractor-trailer combination, belonging to J. Norman Marshall, trading as Marshall's Express Company, and driven by the latter's employee, and travelling west on Philadelphia Road, entered the intersection, and there was a collision between the two. The point of impact, which was agreed upon by all parties, was 28 feet 8 inches north of the south curve of the Philadelphia Road, about 124 feet east of the point where the rounded curb on the southwest side of Monument Street meets the north curb of the Philadelphia Road, and about 125 feet west of the overhead railroad bridge over the Philadelphia Road. The paved surface of the roadway, across the inter-section, at the point of impact, is 61 feet 4 inches. The Philadelphia Road, west of the intersection, is 48 feet 4 inches wide, and east of the intersection, where it goes under the railroad bridge, is 34 feet 9 inches. As a result of the collision, Shedlock and Miller were badly injured, Shedlock's automobile was wrecked, and the tractor-trailer was upset and badly damaged.

On October 5, 1944, Shedlock brought suit against Marshall in the Baltimore City Court, for personal injuries and property damage. On October 16, 1944 Marshall brought suit against Shedlock in the Baltimore City Court for damages to the tractor-trailer. On November 8, 1944, Miller brought suit against Marshall in the Superior Court of Baltimore City for personal injuries. Marshall, after leave granted, filed a third party complaint in this last suit against Shedlock as third party defendant under the provision of the Joint Tort-feasors Act, Flack's Annotated Code, 1943 Supplement, Article 50, Sec. 27(a). Miller, the original plaintiff, did not amend his pleadings to assert the claim against Shedlock as required by the statute, but his failure to do this cannot prejudice Marshall's right to have Shedlock brought in. No question of Miller's failure to declare against Shedlock was raised by anyone, and, as the parties all went to trial on the pleadings as filed, any defects, in this respect, were waived.

General issue pleas were filed in all these cases by all the parties defendant, and on May 14, 1945, Marshall filed his petition in the Baltimore City Court asking that the two cases pending therein, and the Superior Court case, be consolidated for trial in pursuance to Rule 2, Section III, title 'Trials' of Part Three of the General Rules of Partice and Procedure. After an order nisi had been passed, and after the hearing of objections made by Shedlock and Miller, it was ordered by the Court on May 18, 1945, that there should be a joint hearing on all the matters in issue in all the three cases. As the objections pressed here, if well founded, would render nugatory and void all the subsequent proceedings, they will be considered first.

It is contended by Shedlock and Miller that the Court had no authority to order a joint trial of cases originating in the Baltimore City Court, and in the Superior Court, as each of these courts has concurrent jurisdiction in civil common law cases such as those consolidated. Article 4, Part IV, Secs. 27 and 28 of the Constitution are cited as authority for the contention that the provisions of Rule 2 of this Court and their application in the present case are unconstitutional. Rule 2, as adopted by this Court on January 30, 1941, provides that when actions involving a common question of law or fact or a common subject matter are pending before several of the courts of law of Baltimore City, any of such courts in Baltimore City may order a joint hearing or trial of any or all of the matters of issue in the actions: it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs and delay. This rule in common with the other rules, similarly adopted, was authorized by Chapter 719 of the Acts of 1939, and was passed after it had been recommended by a committee appointed by the Court in pursuance of Section 35D of Article 26 of the Code as amended by the Act of 1939. The rules thus adopted were reported to the General Assembly of 1941 as provided by the Act of 1939, and not having been modified or repealed by it, they took effect on September 1, 1941. Ever since that time they have been in effect, and operative.

Chapter 719 of the Acts of 1939, under which the rule was passed, while providing that rules passed under its authority, shall neither abridge, enlarge nor modify the substantive rights of any litigant, states also that the terms 'practice and procedure' shall be liberally construed and shall be deemed to include, among other things, trials and judgments. The Superior Court case was not moved to the Baltimore City Court, nor were the Baltimore City Court cases moved to the Superior Court. A joint trial was had before a judge who was authorized to sit in both courts, and did so sit, concurrently, and before a jury which according to the record was sworn in both courts, and which rendered separate verdicts in each case in the respective courts, as will be hereinafter shown. Under these circumstances no substantive rights of any of the parties in any of the cases were adversely affected, nor was there any violation of any of the provisions of the Constitution. Since the adoption of the amendment of November 1944, adding Section 18A to Article 4, the Constitution itself contains a specific direction to this court to regulate practice and procedure in the trial courts throughout the State. Rule 2 is such a regulation, and has been continued unchanged.

During the course of the testimony a witness for Marshall, upon his return to the witness stand after recess, was asked by counsel for Shedlock, upon cross examination, with whom he had discussed the case during the intermission. Counsel for Marshall thereupon said 'You saw him talking with me on the steps.' And the witness said 'I wasn't talking about this accident.' He was then asked 'What were you talking about?' The Court refused to require him to answer this question over objection. While counsel should avoid talking to his witness while he is still on the stand, even though it is during the luncheon recess, and the conversation is not about the case, nevertheless, we do not think it is within the rights of counsel for the other side to find out what the conversation was about. He had the right to inquire whether he was talking about the case or any phase of it, but not to ask the general question he did. It is unfortunate that such instances should occur because, they lead to suspicion which is often wholly unjustified, but we do not feel that any error was committed by the Court in its ruling on the question.

The Court, when it directed the joint trial of the cases, applied the authority given by Rule 2 to regulate the proceedings by ordering that the arguments at the conclusion of the case should follow the order in which the cases were filed in Court. As a result of this, Shedlock's counsel made the first argument, Marshall's the second, and Miller's the third. Then Shedlock's counsel was given only five minutes for rebuttal, while he was allowed 30 minutes for his first closing argument. This is within the discretin of the trial court and his exercise of such discretion will not be disturbed, unless...