Sim-Kee Corp. v. Hewitt

• Decision Date: 28 October 1971
• Docket Number: SIM-KEE,No. 172,172
• Citation: 13 Md.App. 296,282 A.2d 525
• Parties: CORPORATION, Inc. v. John R. HEWITT, etc.
• Court: Court of Special Appeals of Maryland

Page 296

13 Md.App. 296

282 A.2d 525

SIM-KEE CORPORATION, Inc. v. John R. HEWITT, etc.

No. 172.

Court of Special Appeals of Maryland.

Oct. 28, 1971.

Edward P. Murphy, Baltimore, with whom was Allan B. Rabineau, Baltimore, on the brief, for appellant.

Anthony A. Abato, Jr., Baltimore, with whom were Thomas E. Bracken, and Bracken & Abato, P. A., Baltimore, on the brief, for appellees.

Argued before THOMPSON, MOYLAN and GILBERT, JJ.

THOMPSON, Judge.

On July 21, 1967, John R. Hewitt, one of the appellees, was driving a tractor-trailer truck from Baltimore enroute to Washington, D. C. Mr. Hewitt detected tractor trouble, and after consultation with his service manager, took the truck to the appellant's 'Big Wheel Truck Stop' located on Maryland Route 3. Appellant's mechanic raised the cab to permit access to the engine and worked on the vehicle for a few minutes. After the cab was lowered into driving position, Mr. Hewitt asked the mechanic if the cab was locked into position; the response was 'yes, it's locked.' Mr. Hewitt then proceeded south on Route 3.

Appellee Hewitt sustained injury when, while attempting to come to a stop near the intersection of Route 3 and Route 175, the cab swung forward on its hinges and he was hurled out of the tractor. According to the treating physician, Hewitt sustained 'multiple contusions and abrasions of his body, a sprain of the cervical, dorsal and lumbar spine, and a concussion of the brain associated with neuritis of the glossopharangeal nerve.'

In this suit for personal injuries, Hewitt is joined by the Liberty Mutual Insurance Company, the Workmen's Compensation insurer of Hewitt's employer, which has a subrogation interest by virtue of payments made pursuant to the Workmen's Compensation Law of Maryland.

The case was tried in the Circuit Court for Anne Arundel County before Judge E. Mackall Childs, sitting with a jury on January 19 and 20, 1971. The jury returned a verdict for the appellees in the amount of $5,500. After motion and hearing, Judge Childs ordered that a new trial be granted unless the appellees file a remittitur in the amount of $1,500.00. The remittitur was filed and judgment absolute entered. The evidence shows medical expenses and lost earnings together amounted to approximately $1,500.00.

Appellant alleges: 1) that the conduct of the trial judge in questioning its expert witness, Westerman, was prejudicial to its defense, and 2) that the court committed prejudicial error in instructing the jury on the issue of permanent injury.

I

The appellant produced as one of its witnesses, George J. Westerman, an expert in the filed of tractor mechanics; following his cross-examination, the court asked the witness a series of questions concerning the relationship of the representations in a manufacturer's exploded-view parts diagram, to the particular vehicle in question. Appellant contends that the manner in which the court questioned the witness gave the jury the impression that the testimony of that witness was not worthy of belief.

It is not improper for a trial judge, presiding at a jury trial, to examine a witness on matters admissible in evidence if the previous testimony is not clear. Martin Fertilizer Co. v. Thomas & Co., 135 Md. 633, 640, 109 A. 458 and Jefferies v. State, 5 Md.App. 630, 248 A.2d 807. It is clear from the record as a whole that the court was merely trying to elicit information establishing the relationship of the schematic drawings, used by Westerman in his testimony, to the subject truck. There is nothing in the record to show the manner of questioning was improper, but if the questioning did indicate to the jury that the trial judge was of a certain opinion, any risk of prejudice was dispelled by his clear and explicit instruction:

'* * * I wish foremost to impress upon you that you should not reach any conclusion, nor draw any inference from anything that I have said or may say or from my tone of voice or manner in saying it * * *.'

See Nicholson v. Blanchette, 239 Md. 168, 175, 210 A.2d 732, State Roads Commission v. Wyvill, 244 Md. 163, 170, 22o A.2d 146.

II

Appellant argues that there is no legally sufficient evidence that the appellee, Hewitt, sustained any permanent injury as a result of the incident and therefore the trial court committed error in its instruction which permitted the jury to consider the issue of permanency.

Appellant's argument loses much of its force when we look at the testimony of the family physician, who, testifying three and one-half years after the accident, said:

Mr. Abato: 'Now doctor, do you have an opinion that you can express with reasonable medical probability as to whether the Plaintiff will in the future continue to suffer pain as a result of these injuries? * * *'

Dr. Beck: 'From what I know of the patient, from what I remember, I believe the patient still...