Smith v. Lapidus

• Decision Date: 11 November 1955
• Docket Number: No. 26,26
• Parties: William Alfred SMITH, etc. and Geraldine Zimmerman v. Samuel LAPIDUS and Eva Lapidus.
• Court: Maryland Court of Appeals

Page 273

208 Md. 273

118 A.2d 373

William Alfred SMITH, etc. and Geraldine Zimmerman v. Samuel LAPIDUS and Eva Lapidus.

No. 26.

Court of Appeals of Maryland.

Nov. 11, 1955.

Bernard E. Stern and Allan H. Fisher, Jr., Baltimore, for appellants.

Herbert L. Grymes, Baltimore, for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

In this case actions at law were brought by the infant appellant for injuries sustained in a fall from a porch on leased premises, and by his mother for loss of services and medical expenses. They were tried before the court and a jury, resulting in verdicts of $10,000 and $2,000, respectively. Motions for new trial were overruled, and the judgments made absolute on March 11, 1955. Appeals to this Court were entered on March 14. On March 23, a motion to strike the judgments, with exhibits attached, was filed. On March 29, the appeals to this Court were dismissed. Answers to the motion to strike were filed on March 30, and amended answers on April 6. On April 7, 1955, the judgments were stricken out and new trials granted pursuant to an order filed. This appeal is from that order. The appellees have filed in this Court a motion to dismiss the appeal.

There can be no question that the trial court retained jurisdiction to entertain the motion to strike the judgments filed (and in fact disposed of) within thirty days from the date of their entry, under Rule 1, Sec. VI, Part 2 of the Rules of Practice and Procedure, despite the overruling of the motions for new trial and the entry of appeals that were subsequently dismissed Tiller v. Elfenbein, 205 Md. 14, 106 A.2d 42. The appellants concede the general rule that the trial court has a wide discretion to strike a judgment that is not ordinarily reviewable on appeal, particularly where there remains no final judgment to appeal from. Tiller v. Elfenbein, supra; Snyder v. Cearfoss, 186 Md. 360, 46 A.2d 607. The appellants contend, however, that the court abused its discretion by refusing to consider evidence proffered within the exceptions noted in Washington, B. & A. Electric R. Co. v. Kimmey, 141 Md. 243, 118 A. 648, and Hartlove v. E. & H. Bottling Co., 160 Md. 507, 153 A. 850.

It would appear that the only testimony produced by the plaintiffs as to the actionable nature of the fall was that of the mother, to the effect that the fall was caused by the breaking of a defective board in the floor of the porch on which the child stepped. It was this type of defect that had been brought to the landlords' attention. The testimony of the appellees was to the effect that the porch floor had been completely repaired just prior to the accident. Another boy, an eye witness, testified that the fall occurred when the infant plaintiff was standing outside the rail taking clothes off a clothesline. His hand slipped off the rail, and the clothesline [operating on a pulley] carried him out over the year, where he fell. It was testified that the mother had told a third party on the day after the accident that the boy lost his balance and was carried out on the clothesline, and that it was not the landlords' fault, but at the trial she flatly denied making this statement. The motion to strike alleged, in effect, that her testimony was false. Exhibits attached to the motion consisted of a photostatic copy of the hospital records of the Bon Secours Hospital, to which the boy was taken following the accident, containing an entry stating that the accident occurred when the patient 'fell from second floor, reaching for clothesline', and an affidavit of Dr. Byrnes, who declared that he had made the entry and that information as to the accident was obtained by him from the mother when the boy was brought in. The motion alleged that the hospital records were not brought to the jury's attention or known to the defendants at the time of trial, and that the facts sworn to by Dr. Byrnes were not known to the defendants until just before the motion to strike was filed.

The amended answer to the motion relied upon a lack of diligence on the part of the appellees to discover the entry in the hospital records which were produced at the trial and offered in evidence, although not marked as such or read to the jury. The appellants challenged the truth of the affidavit of Dr. Byrnes by denying that the entry was in his handwriting and by filing a counter affidavit of the mother, wherein she swore she made no statement about the fall to Dr. Byrnes, and another affidavit to the same effect by her mother, Mrs. Hess, who accompanied her to the hospital. The answer also contended that the entry in the hospital records was hearsay, not pathologically germane to the injuries received, and hence inadmissible. The answer also asserted that the plaintiffs were entitled to have testimony taken on the issues of fact presented by the motion and answer, before a ruling on the motion. The court, however, after argument but without hearing testimony, struck out the judgments, stating: 'I find no explanation for the statements in the medical record except that the information given the hospital conflicts with the testimony of Mrs. Zimmerman at the trial. Furthermore, I believe the verdicts are excessive.'

In Washington, B. & A. R. Electric Co. v. Kimmey, supra, a motion for a new trial was refused, although evidence attacking the validity of a claim for damages, which if considered would almost certainly have required the granting of a new trial, was introduced without objection. None of this evidence, largely in the form of affidavits and depositions, was considered by the trial court, but was stricken out upon motion ne recipiatur. On appeal from the judgment this was held to be an abuse of discretion. In Hartlove v. E. &...