State, to Use of Scruggs v. Baltimore Transit Co.

• Decision Date: 13 December 1939
• Docket Number: 59.
• Citation: 9 A.2d 753,177 Md. 451
• Parties: STATE, to Use of SCRUGGS, v. BALTIMORE TRANSIT CO. et al.
• Court: Maryland Court of Appeals

9 A.2d 753

177 Md. 451

STATE, to Use of SCRUGGS, v. BALTIMORE TRANSIT CO. et al.

No. 59.

Court of Appeals of Maryland

December 13, 1939

Appeal from Baltimore City Court; J. Craig McLanahan, Judge.

Action by the State of Maryland, to the use of Hazel W. Scruggs surviving widow of William L. Scruggs, deceased, against the Baltimore Transit Company and another, for death of William L. Scruggs in automobile collision. To review orders granting new trial and denying motion to strike out order directing new trial, plaintiff brings writ of error and appeals. On defendants' motion to dismiss the appeals and writ of error.

Appeals dismissed.

G Randolph Aiken, of Baltimore (Aiken & Krieger and Joseph T Parr, all of Baltimore, on the brief), for appellant.

James J. Lindsay, Jr., and Philip S. Ball, both of Baltimore, for appellee Baltimore Transit Co.

William L. Marbury, Jesse Slingluff, Jr., L. Wethered Barroll, and Marbury, Gosnell & Williams, all of Baltimore for appellee Nelson Mahone.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

PARKE, Judge.

The action in the pending case was brought by the State of Maryland to the use of the surviving widow of William L Scruggs against the Baltimore Transit Company, a corporate public carrier, and Nelson Mahone, defendants, to recover under the statute (Lord Campbell Act), for the alleged negligent death of the husband in a collision between the automobile truck of the carrier and an automobile driven by the defendant, Nelson Mahone, at where the western terminus of Center Street enters the eastern side of Howard Street. The case was tried before a jury and resulted in a verdict against both the defendants. Before the verdict was extended, the carrier filed a motion for a new trial. The usual grounds of such a motion were given: That the verdict (1) is against the evidence; and (2) is against the weight of the evidence; and (3) that the damages awarded are excessive; (4) and that evidence is newly discovered; (5) that the Court was guilty of error in its instructions to the jury and (6) that other reasons would be assigned at the hearing of the motion. A seventh ground assigned was misconduct of the jury. The defendant Mahone filed a separate motion, which differed in naming but three grounds. Two of these were like the third and sixth of the carrier's, while the third was for errors in rulings of the Court on the testimony. After these motions, the proceedings relative to the motions became somewhat complicated, and resulted eventually in the parties appearing before the trial judge, where testimony was heard with reference to the alleged misconduct of certain of the jurors. In the course of these proceedings, the plaintiff raised numerous questions of procedure, of the capacity of witnesses to testify and of the admissibility, relevancy and materiality of the evidence, and of its legal sufficiency to support a new trial. At the close of the testimony and of the hearing, the Court gave the questions of law and of fact painstaking and careful consideration, and filed an opinion in which the whole matter was weighed, and the reasons of the trial court for granting the motion were stated. The order of Court setting aside the verdict and granting a new trial was filed on June 20, 1939.

On June 27, the plaintiff filed a motion to strike out the order directing a new trial, which was, by its own averment, based principally on the alleged improper admission of the testimony produced by the carrier at the hearing in connection with the preceding motion for a new trial. Consistently with its previous ruling, the Court denied on June 29, 1939, this motion. Whereupon the plaintiff presented the Court with a petition for a writ of error to bring before this tribunal for review the two orders of June 20 and 29. The Court allowed the writ of error as prayed on July 18. The following day appeal was entered by the plaintiff from the same two orders. The writ of error and the two appeals come up on one record and are docketed as though a single appeal.

The defendants have made a motion in this Court to dismiss the two appeals and the writ of error. The Court is clearly of the opinion that the action of the trial court in overruling the plaintiff's motion to strike out the order granting a new trial, and in its awarding a new trial go to the discretion of the trial court in granting or refusing a new trial and cannot be made the subject of review on appeal on the facts and circumstances of this record. Nor can the Court fail to express its disapproval of the improper combination in one record of a writ of error and appeal as is exemplified in the matter now before the Court. Alexander's British Statutes, Coe's Ed., vol. 1, p. 282; Evan's Practice 2nd Ed., 437; Rutherford v. Pope, 15 Md. 579; Seth & Lowe v. Chamberlaine, 41 Md. 186; Baltimore & O. R. Co. v. Brydon, 65 Md. 198, 222, 611...