State, for Use of Mitchell, v. Jones
| Decision Date | 11 April 1946 |
| Docket Number | 99. |
| Citation | 46 A.2d 623,186 Md. 270 |
| Parties | STATE for Use of MITCHELL et al., v. JONES et al. |
| Court | Maryland Court of Appeals |
Reargument Denied May 16, 1946.
See 47 A.2d 71.
Appeal from Court of Common Pleas of Baltimore City; Emory H. Niles Judge.
Suit by the State, for the Use of Rosa Mitchell, surviving widow, and another, by Crawley Cousins, as next friend, against Charles S. Jones and Robert Williams for the death of William Mitchell as the result of being struck by defendant Jones' truck driven by defendant Williams. From a judgment for defendant Jones and for plaintiff against defendant Williams only, plaintiff appeals.
Affirmed.
Paul Berman and Sigmund Levin, both of Baltimore (Theodore B. Berman, of Baltimore, on the brief), for appellant.
Albert L. Sklar, of Baltimore (Henry R. Wolfe, of Baltimore, on the brief), for appellee Charles S. Jones.
Bernard B. Feikin, of Baltimore, for appellee Robert Williams.
Before MARBURY, Chief Judge, DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
This is a suit under Lord Campbell's Act for death by automobile on behalf of the widow and child of the victim (Mitchell) against the owner (Jones, appellee) and the driver (Williams appellee) of the truck in question. The case was tried before the court without a jury. From a judgment on verdict for Jones, and for the plaintiff for §10,000 againt Williams (who is evidently judgment proof), the plaintiff appeals.
Judge Niles in his opinion says the case was 'tried over three days and tried thoroughly'. Though the decision below is reviewable on both the facts and the law, the facts as to the accident require no detailed consideration. The accident occurred a few minutes after midnight on July 15, 1944, on Hanover Street, a wide well-lighted street. Mitchell was fixing a flat (left rear) tire on a car parked on the west side of Hanover Street. Williams, while driving the truck south on Hanover Street struck Mitchell, who died at the South Baltimore Hospital a few hours later. Judge Niles resolved questions of primary and contributory negligence by finding that the truck not only struck Mitchell but struck the parked car itself. A suggestion that Mitchell has stepped east in front of the truck therefore became immaterial. This finding is abundantly supported by the evidence and has not been questioned by Jones. Williams did not appeal. In the lower court he had counsel and actively participated in the trial; in this court no brief was filed or argument made for him.
Williams was convicted of manslaughter and sentenced to a year in jail. Before the trial below Judge Niles stated that on motion for a new trial he had read the record of the trial of the criminal case.
Williams' wife is Jones's sister. In July 1944 Williams and his wife lived with Jones (and his wife) at Brooklyn, Anne Arundel County. Williams' wife conducts a tavern on Fremont Avenue in Baltimore in a building owned by Jones. Williams was employed as chauffeur by a man in the feed business, named Clusman. Jones is a carpenter and deals in real estate. Besides the truck, he owns a passenger car. Williams' wife also owns a car. Jones says he uses the truck in his business; he brings materials in it and rides in it himself; sometimes he keeps it at his home, sometimes he leaves it on Fremont Avenue at night. The tavern closes at two. Williams would go to the tavern in the evening, wait for his wife and drive home with her; sometimes, when Jones was there, Jones would wait for her. Jones, Williams and Williams' wife all say Williams did not work for Jones and never had done so.
On July 14, 1944 Jones spent the day and the evening, until after midnight, at his sister's tavern, putting in some French windows. He ways he brought the truck up there that morning; he had some sand and gravel in it, to put in the windows; that evening there was nothing in it. Williams' wife also had her car there. Williams finished work at 4:30 and went to his wife's place. That evening he went to a baseball game that lasted until about eleven. He had to work the next morning. When he got back from the game his wife told him he 'could go ahead on home'. He saw Jones and told Jones he was going home. He left a little after 11:30 to go home and go to bed. He says he saw the truck and his wife's car parked at the tavern; he took the truck, so that his wife could go home in her car with Jones; he did not ask permission, or tell them he was taking the truck; he knew it would be all right with Jones; he had driven the truck down there before, though not often. Jones says, when he and his sister left at 2 and he saw the truck 'was gone', he was not disturbed because he knew Williams must have taken it.
A few minutes after the accident, Officers Trainor and McGrath of the Accident Division of the Baltimore Police Department arrived at the scene. Mitchell was removed to the South Baltimore Hospital. Williams had a driver's license but not a registration card. Trainor says, Williams said 'the man he worked for had his card'. Trainor went to the South Baltimore Hospital in the truck with Williams; Williams telephoned Jones; Jones came to the hospital and produced the registration card. Trainor had held Williams because (1) the injured man was in a critical condition and (2) Williams had no registration card. Trainor says, Jones said Williams worked for him, and ; Trainor said, 'You say he works for a feed man * * * and he works for you after he finishes there and he lives down at your place down the country?' Jones said, 'That's right'; Jones told Trainor he had told Williams to take the truck down the country to take some things down, and Williams was to stay there when he got there; Williams told Trainor he was taking the truck down the country, but did not tell the purpose of the trip; neither Williams nor Jones told what things he was taking down. Trainor says there was 'a lot of stuff' in the truck but he did not look in to see what it was.
Officer McGrath says, Williams said to him 'I don't see why he asked me to drive the truck down there anyway; my car is now sitting out on the street', at the tavern; McGrath heard Jones say to Trainor, 'Sure, he can use it, he is my brother-in-law, and at the same time he works for me at night when he isn't at the feed place'; Jones did not say to Trainor what Williams was doing with the car; Williams said Jones asked him to take it down and get it off the street.
Williams says, there was nothing at all in the truck; he told Trainor his brother-in-law had the registration card; he heard Jones say to the officers, 'It was all right that I had his truck, that he knowed I had his truck, because I drive his truck'; he (Williams) did not say anything about 'his car'; 'I has no car'.
Jones says he never told Trainor that Williams was working for him, or that he had told Williams to take the truck to take things down to his place, but that he told Trainor Williams had permission to use the truck. 'He didn't have no permission because I never objected to him using it'. In the criminal trial Jones was asked 'When did you turn the truck over to your brother [sic]?' and replied it was close to twelve. He says he misunderstood the question and a repetition of it.
The plaintiff relies on the testimony of Trainor and McGrath as showing that at the time of the accident Williams was engaged in Jones' business, and therefore Jones is liable for Williams' negligence. The contention is: The policemen are truthful disinterested witnesses; Jones and Williams are untruthful interested witnesses; after telling the policemen the facts, they changed their stories to let Jones excape liability; their testimony is discredited by alleged inherent contradictions and weaknesses, the most important of which are found in the testimony above stated; 'witnesses are to be weighed, not counted'; so weighed, Jones and Williams are found wanting; by application of the maxim falsus in uno, falsus in omnibus their testimony should be wholly disregarded.
This contention is not without force, but it is an oversimplification of the problem. Not only witnesses but testimony must be weighed. The testimony of Jones--and Williams--seems more probable than their alleged 'admissions' to the policemen. Why Williams, who had regular work by day, should also work for Jones by night, what work he did for Jones, what difference it made to Jones whether the truck (even if full of 'stuff') went home at 11:30 or at 2, are questions wholly unanswered. The one clear object of the trip was sleep for Williams. In the circumstances, including the family relationship, taking the truck without asking is not incredible.
Jones and Williams are negroes, not highly educated; the policemen presumably are not lawyers or grammarians. The policemen saw two possibilities, (1) criminal homicide and (2) wrongful taking of the truck; they were not looking for evidence of civil liability. Their official report, and a statement they got from Williams, covered facts relevant to these two possibilities, and did not contain the 'admissions' now relied on. Neither the policemen nor the negroes were...
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