Smiley v. Atkinson, 569

Citation280 A.2d 277,12 Md.App. 543
Decision Date03 August 1971
Docket NumberNo. 569,569
PartiesWalter SMILEY et al. v. Lilliam ATKINSON, Administratrix of the Estate of John C. Atkinson, et al.
CourtCourt of Special Appeals of Maryland

Robert C. Barnhouse, Baltimore, with whom were James P. Gillece, Jr., and Piper & Marbury, Baltimore, on the brief, for appellants.

Max R. Israelson, A. Gus Mastracci, Clayton A. Dietrich, Baltimore, with Whom were Joseph I. Pines, S. Michael Floam, and George L. Russell, Jr., Baltimore, on the brief, for appellees.

Argued before ORTH, MOYLAN and POWERS, JJ.

POWERS, Judge.

This case involves procedural questions, the law of last clear chance, and $90,000.00.

John C. Atkinson filed suit in the Superior Court of Baltimore City claiming damages for injuries sustained in a motor vehicle accident. In a separate count he and his wife, Lillian F. Atkinson, jointly claimed compensation for damage to their conjugal relationship. They named as defendants, Walter Smiley and his employer, Continental Can Company, Inc. Those defendants filed a third party claim against George Francis Gunzelman, and the Atkinsons later amended their declaration to claim directly against Gunzelman. Gunzelman filed a crossclaim against the original defendants.

Shortly before 11:00 A.M. on May 31, 1967 Atkinson, an employee of the City of Baltimore, was working on an elevator-platform, mounted on a city work truck, performing maintenance work on overhead traffic lights. The truck, painted yellow and equipped with yellow flashing lights, was standing the middle of the eastbound lanes of Pulaski Highway, Route 40, a divided highway, which had three eastbound lanes. After he had worked on the traffic signal to the right to the truck for several minutes, Atkinson operated the controls and swung the platform to the other side, so that it extended a foot or a foot and a half, according to his testimony, into the lane to the left. Each lane was said to be 12 feet wide.

Atkinson said he had worked on the light to his left for about three minutes, and traffic, including tractor-trailers, was passing both to the right and to the left. The position of the truck and the elevated platform was such that Atkinson was facing east, with his back to traffic approaching on the adjacent lanes, while he was working on the light.

Appellant Walter Smiley was operating a tractor-trailer for appellant Continental Can Company, Inc. in the left eastbound lane. His trailer hit the platform and caused injuries to Atkinson. Appellee Gunzelman, foreman of the crew working with the truck, testified that Smiley said at the scene that he 'saw the truck as he approached and thought he could clear it.' The investigating officer testified that Smiley gave him a statement saying that he saw the platform and misjudged the height of it. Smiley testified that when he was at North Point Road, over 1,000 feet away, he saw the truck, and saw that the platform extended slightly over his lane.

From the time the suit was filed on April 10, 1968, extensive discovery was undertaken by all parties. By agreement in early March 1970, trial was scheduled for May 4, 1970. Trial actually began on May 5th before Judge William J. O'Donnell and a jury, and was concluded by verdicts of the jury on May 13th. The verdicts were for Atkinson for $75,000.00 and for Mr. and Mrs. Atkinson jointly for $25,000.00, both against Smiley and Continental Can. A verdict was returned in favor of the defendant Gunzelman. The crossclaim he had filed against Smiley and Continental Can had been dismissed before submission of the case to the jury.

After argument and disposition of a motion for judgment n.o.v. or for a new trial, judgments were entered on those verdicts, but the joint judgment was remitted to $15,000.00. Smiley and Continental Can appealed from the judgments.

Procedural Developments and Pretrial Appeal

On May 4, 1970 appellants filed a motion for physical examinations of the plaintiff, and a motion for continuance. The motion for physical examinations was presented to Judge Prendergast, and the motion for continuance came before Judge Howard. Commencement of the scheduled trial was held in abeyance until the following day.

The next morning Judge Prendergast filed a letter addressed to counsel, explaining the issues presented by, and his conclusion to deny the motion for physical examinations. The complete letter follows:


By agreement of counsel, this case was specially set for trial on May 4, 1970. On that date counsel for defendants submitted a lengthy series of motions and proffered orders designed to postpone the trial in order to afford him the opportunity to have two additional medical examinations of plaintiff. One of these examinations would be made by Dr. Packard, the orthopedist who had previously examined plaintiff for defendants at defendant' request, while the second examination would be by a Dr. Sidney Scherlis, a cardiologist. These pleadings were submitted to me at 9:50 A.M. yesterday, the morning of the scheduled trial date, and I was obligated to be on the bench at 10 o'clock to try the usual heavy criminal assignment for the day. Time did not permit an intelligent analysis of the problems, so I studied the file in detail at home last evening.

Meanwhile, Judge Howard, who is in charge of all disputes involving assignment of cases, wisely allowed the additional day to resolve this question of discovery law.

The request of defense counsel for the examination by a cardiologist is reasonable enought but it comes too late. It is clear that under Maryland Rule 526 no trial may be postponed or delayed by reason of incompletion of discovery proceedings under Chapter 400 after a case has been assigned a trial date. Accordingly, this court cannot sign the proffered motions submitted by defense counsel and, assuming that Judge Howard concurs, the trial shall proceed forthwith.

Mr. Barnhouse complains that he is caught by surprise as the result of plaintiff's claim that his heart condition was precipitated or aggravated by the accident in suit. The record does not support that. As early as January 10, 1969, plaintiff's answers to interrogatories revealed that among the injuries claimed were 'shock to cardio vascular system' and it was revealed that plaintiff had a past history of heart trouble. In his deposition, it is said that plaintiff testified that his heart condition was brought on by the accident. Some weeks ago plaintiff's counsel, by letter, informed Mr. Barnhouse that a Dr. Vollmer would testify that the heart condition was caused or aggravated by the trauma. From this it follows that defense counsel had ample time to have the examination made long ago and not after the scheduled trial date.

In any event, defendants may, if they so desire, have Dr. Scherlis or some other cardiologist attend the trial, listen to all the testimony, and then possibly give an opinion on the stand, provided that an appropriate amendment to answers to interrogatories is filed. Perhaps this could be done by agreement.

At any rate, the court cannot sign the proffered motions and sees no reason why the trial should be delayed.'

Judge Howard denied the motion for continuance, as reflected in docket entries made on May 4th and again on May 5th. This motion was part and parcel of the other and presumably was denied for the same reasons. Also on May 5th, Judge Howard overruled a demurrer which appellants had filed to Gunzelman's crossclaim against them. Their protest that they were denied their 15 days in which to plead to the crossclaim was mooted by its later dismissal.

If what we have already recited indicates that the morning of May 5th, before the jury was impanelled, was a busy time, it became even more busy. Appellants filed an order to the clerk to:

'Enter an appeal to the Court of Appeals from the order of the Court dated May 5, 1970, denying the Motion for Physical Examinations of John C. Atkinson, Plaintiff, and from the order of the Court dated May 5, 1970, denying the Motion for Continuance filed by Walter Smiley and Continental Can Company, Inc., Defendants.'

They then presented to Judge Wilson K. Barnes, of the Court of Appeals, a petition for stay of proceedings. Judge Barnes denied the petition. All counsel then conferred in chambers with Judge O'Donnell. The record of that conference shows that appellants made abundantly clear their contention that their filing of an order for appeal from the denial of their discovery motion and their motion for continuance absolutely divested the trial court of jurisdiction to proceed with the case, and that only the appellate court could determine whether the appeal was properly taken. Judge O'Donnell disagreed, and ordered that the trial proceed. It did.

Whatever vitality that purported appeal had was preserved by extensions of time within which to file the record, and it comes to us in one record with the appeal from the final judgments.

A. Effect of the Appeal from Interlocutory Orders

We have carefully studied the well briefed authorities dealing with the effect of the filing of the order for appeal upon the court's jurisdiction to proceed with the trial of this case. Most deal with the power of a lower court to conduct further proceedings after an appeal has been filed from a final order. A few deal with borderline questions of finality, and therefore appealability, of an order or decree. We find none which could support the contention that these interlocutory orders relating to discovery and continuance are immediately appealable. Eastern States Corp. v. Eisler, 181 Md. 526, 30 A.2d 867, decided in 1943, cannot be extended beyond the particular facts it involved. The Court of Appeals there entertained an appeal from a discovery order in an equity case made while there was pending a demurrer which questioned the very jurisdiction of the court (the demurrer was later sustained) and did so not because the order was an abuse of...

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