White v. King, 245

• Decision Date: 30 May 1968
• Docket Number: No. 245,245
• Citation: 242 A.2d 494,250 Md. 192
• Parties: Robert B. WHITE and Catherine M. White v. Horace L. KING, Sr.
• Court: Maryland Court of Appeals

Page 192

250 Md. 192

242 A.2d 494

Robert B. WHITE and Catherine M. White v. Horace L. KING, Sr.

No. 245.

Court of Appeals of Maryland.

May 30, 1968.

Joseph F. McBride, College Park (Bill L. Yoho, Robert S. Hoyert, Roy W. Hooten and Hoyert, Yoho & Hooten, College Park, on the brief) for appellants.

Jerrold V. Powers, Upper Marlboro (Sasscer, Clagett, Powers & Channing, Upper Marlboro, on the brief) for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS and FINAN, JJ.

McWILLIAMS, Judge.

At about 2:00 P.M. on 5 August 1960 the Whites and the Kings left Hyattsville in a car belonging to King's employer. They were bound for Grand Rapids, Michigan, to attend the funeral of a relative. Twelve hours later, while King was driving, the car ran off of the hard surface of a Michigan highway onto the median strip. In the ensuing crash the Whites were injured. They claimed King's stubborn refusal of relief at the wheel, despite his drowsiness, was gross negligence under the Michigan guest statute. King stoutly denied he had any reason to be concerned about his condition and that when he did 'doze off' it was without any 'forewarning whatsoever.'

The first time this case was tried the court, at the close of the plaintiff's case, directed a verdict in favor of King. We reversed, holding the Michigan statute was controlling and that there was enough evidence to go to the jury on the issue of gross negligence. White v. King, 244 Md. 348, 223 A.2d 763 (1966). At the conclusion of the second trial the jury brought in a verdict in favor of King. The appellants (White) now contend it was error for the trial judge to admit certain evidence and thereafter to allow improper argument thereon by King's counsel. We do not agree. The parties are in accord that the evidence as summarized by Judge Oppenheimer, for the Court, in White v. King, supra, is essentially the same as the evidence produced at the second trial except, of course, for the addition of King's testimony. We shall not repeat Judge Oppenheimer's re sume of the evidence.

What follows is an excerpt from the direct examination of King:

'Q. Can you state, Mr. King, whether or not you had any intent to do anything dangerous in the operation of the car?

'Mr. Yoho: I object.

'Mr. Powers: That goes to the very point.

'The Court: 'Whether or not' would be perfectly proper. Just rephrase it.

'By Mr. Powers:

'Q. Could you state whether or not, Mr. King, you had any intent at that time to do anything dangerous in the operation of the automobile? A. I would have no idea of ever hurting anyone in an automobile or any other place.

'Mr. Yoho: I object and move the answer be stricken.

'The Court: Overruled.

'By Mr. Powers:

'Q. Did you at that time? A. No, sir.'

The trial judge instructed the jury, in part, as follows:

'We are not concerned in this case with negligence as such, but with gross negligence. The difference between them is not merely one of degree but of the very nature of the acts and omissions and the state of mind of the party charged.

'The law uses the term gross negligence or willful and wanton misconduct. These are not two different things. One helps to define the other. To constitute gross negligence or willful and wanton misconduct there must be an affirmatively reckless state of mind together with the intent to depart from careful driving.'

We have set forth below, verbatim, some typical statements, made by King's counsel during his argument to the jury, which White claims were improper and prejudicial.

'To constitute gross negligence or willful and wanton misconduct there must be an affirmatively reckless state of mind together with the intent to depart from careful driving.'

'Whether we like it or not, whether we agree with it or not, a guest in the care of someone else is bound by these laws and he is not entitled to recover damages from the driver of that automobile unless that driver was guilty of gross negligence or wanton, willful and wanton misconduct. And to show those things there must be an affirmatively reckless state of mind, together with the intent to depart from careful driving.'

'That is one of the big things against Mr. King, he didn't have the radio on and he didn't have the air conditioner on at two o'clock in the morning in Michigan when he said it was cold and he didn't want to get cold air on the other people in the car and he just had the vent cracked. Doesn't that seem a little more logical and sensible, ladies and gentlemen, than to say that added up to gross negligence and willful and wanton intent to injure somebody because he has the air conditioner off and the radio off?

'Mr. Yoho: I object as being improper argument, if the Court please.

'The Court: Overruled.'

'Mr. King could, of course, lie to you about it, but he told you there was certainly nothing in the world in his mind like an intent to do anybody harm. But to come under this law that is what has to exist. You have to be convinced by a preponderance of the evidence that that was in fact in his mind and of course that he lied to you when he said it wasn't. You would have to be convinced that he exhibited just an utter disregard for the safety of all the people in the car, and of course that included himself and his wife too, you know, and that his actions were so gross and so willful and so intentional that it comes within this particular law that applies to this case.'

'And the law says there is no right of action to recover by Mr. and Mrs. White against Mr. King unless you find that he had an intent to do harm to these people, that it was willful on his part, that he had an affirmatively reckless state of mind, not just a negative mind where he didn't care one way or the other, but an affirmatively reckless state of mind and an intent to do something reckless that would cause people harm. This case just doesn't add up to that, ladies and gentlemen, and I suggest that under those circumstances...