Williams v. Wheeler

• Decision Date: 14 January 1969
• Docket Number: No. 360,360
• Citation: 249 A.2d 104,252 Md. 75
• Parties: Mose Zell WILLIAMS v. Elmore Bernard WHEELER et al.
• Court: Maryland Court of Appeals

Page 75

252 Md. 75

249 A.2d 104

Mose Zell WILLIAMS v. Elmore Bernard WHEELER et al.

No. 360.

Court of Appeals of Maryland.

Jan. 14, 1969.

William A. Ehrmantraut, Rockville (Edward C. Donahue, John J. Mitchell and James P. Gleason, Rockville, on the brief), for appellant.

Thomas B. Yewell, Marlow Heights, for appellees.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

BARNES, Judge.

This case involves an action brought by the appellees, Elmore Bernard Wheeler, Evelyn Dolores Wheeler, Dolores Ann Wheeler, Steven Mark Wheeler, and Bernard John Wheeler (Wheelers) all of whom were occupants of an automobile which was involved in an accident with another automobile owned by the appellant Mose Zell Williams (Williams) and operated by his stepson, Willie Brady (Brady). On August 13, 1966 the Wheeler automobile, which was owned and being operated by the appellee, Elmore Bernard Wheeler, was being driven in a southerly direction on Maryland Route No. 5 in Prince George's County, and was struck by the Williams vehicle which was traveling in the opposite direction on Route No. 5. Brady was operating the Williams vehicle, and the appellant Williams was a passenger in the vehicle, apparently asleep on the back seat.

At the trial below, the Circuit Court for Prince George's County (Meloy, J.) denied the defendant Williams' motion for a directed verdict, and the jury returned a verdict against both defendants, Brady and Williams. After denying Williams' motion for judgment n. o. v., on September 20, 1967, the court entered a judgment for the plaintiffs against both defendants. From this judgment, the appellant Williams brings this timely appeal. The defendant Brady did not appeal.

The only evidence concerning the circumstances leading up to the accident was the testimony of the two defendants, Williams and Brady, both of whom were called as adverse witnesses by the plaintiffs. Brady testified that early in the afternoon of August 13, 1966, he and his stepfather, Williams, drove in Williams' taxicab to a 'beer joint' in Waldorf where they drank beer and played slot machines for the duration of the afternoon. Williams left the bar first, and went to sleep in the back seat of his car. Brady stated that when he left the bar, he was unable to awaken his stepfather, and, as he (Brady) had seen Williams put the keys under the sun visor, he took the keys and proceeded to drive the car home. The accident at issue here occurred in the course of that trip.

Williams' testimony did not differ in any material respect. Both of the defendants maintained that neither had had more than 3 or 4 beers, and that Williams was merely sleeping in the car and was not drunk. Both witnesses also testified that Brady did not then or ever have permission from Williams to drive his car, and that in the twelve years during which Brady lived with Williams, he never drove any automobile belonging to Williams. It is undisputed that Brady did not have a driver's license.

In considering the propriety of Judge Meloy's rulings on the appellant's motion for a directed verdict and a judgment n. o. v., it is necessary, at the outset, to consider the essential factor that all or that portion of the plaintiffs' case relating to the circumstances leading up to the actual occurrence of the accident, came from the testimony of the defendants.

Art. 35 § 9 of the Code provides:

'Adverse parties may be called; interrogated and impeached.

'In any suit, action or proceeding at law or in equity in any court of this State, any party may call as a witness any adverse party * * *, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party.'

It appears that this provision (originally enacted as Chapter 109, § 4 of the Acts of 1864) was enacted to mitigate some of the harshness of the common law, which made no provision for the calling of adverse witnesses and under which a party might be absolutely bound by the evidence of his witness, regardless of whether he was an ordinary witness or the opposing party, without any opportunity to impeach him. Accordingly, this statute is to be construed strictly, and does not alter the common law except as explicitly provided. Mason v. Poulson, 43 Md. 161, 177 (1875). Thus, it has become settled that the party who puts on an adverse witness, is bound by his testimony insofar as such testimony is not impeached or contradicted. In Vokroy v. Johnson, 233 Md. 269, 196 A.2d 451 (1964), a directed verdict for the defendant was affirmed where the defendant testified, as an adverse witness, that the plaintiff's decedent walked out into the road into the side of the defendant's car. Judge Marbury, for the Court stated:

'Unless it was contradicted or discredited, the testimony of the adversary, Johnson, is binding upon the plaintiff, Vokroy, who called him as a witness.' (233 Md. at 272, 196 A.2d at 452),

and accordingly, held that there was sufficient evidence to establish contributory negligence as a matter of law.

Similarly, in Maszczenski v. Myers, 212 Md. 346, 129 A.2d 109 (1957), it was held that in the absence of contradiction or impeachment, the testimony of the defendant (called by the plaintiff) stood on the record as the explanation of how the accident occurred. Accord, Morris v. Hazlehurst, 30 Md. 362 (1869); Harrison v. Harrison, 117 Md. 607, 84 A. 57 (1912).

We agree with Judge Prescott in Proctor Electric Co. v. Zink, 217 Md. 22, 141 A.2d 721 (1958) that:

"(A) party is not bound by all the statements of a witness called by him, if adverse, even though no other witnesses are called to contradict him; the party may rely on part of such testimony, although in other parts the witness denies the facts sought to be proved.' (Citing 3 Jones, Evidence Civil Cases 1590 (4th Ed.)) (217 Md. at 32-33, 141 A.2d at 726)

'The testimony of a witness may be contradicted or discredited by circumstances as well as by statements of other witnesses, and a jury is not bound to accept a witness' testimony as true if it contains improbabilities, or it there are reasonable grounds for concluding that it is erroneous.' (217 Md. at 33, 141 A.2d at 726)

See also Plitt v. Greenberg, 242 Md. 359, 219 A.2d 237 (1966); Wood v. Johnson, 242 Md. 446, 219 A.2d 231 (1966); Lehmann v. Johnson, 218 Md. 343, 146 A.2d 886 (1958).

In our opinion, however, these cases do not require that every question arising from the testimony of an adverse witness to be submitted to the jury. In the absence of some real doubt being cast upon the testimony in question, whether by the testimony of other witnesses and inconsistent circumstances (Wood v. Johnson, supra and Lehmann v. Johnson, supra) or because the adverse witness' testimony was vague, indefinite and internally contradictory (Plitt v. Greenberg, supra) or because the matter testified to was opinion testimony brought out by his own counsel on cross-examination and was contradicted by other circumstantial evidence (Proctor Electric Co. v. Zink, supra), it is proper to hold as a matter of law that the party who called the opposing party as his own witness is bound by his testimony.

In the present case, the plaintiff called both of the parties defendant as his own witnesses, and the testimony of each one was totally consistent with that of the other. Nor do we find any internal contradictions in the testimony of either defendant, or any circumstance or testimony by any other witness which tends to impeach the testimony of the defendants, insofar as relevant here. Moreover, the matters testified to were cnes which were of a factual nature, generally within the personal knowledge of the defendants, and there was no vagueness, indefiniteness, or uncertainty in their testimony.

Thus, we must accept, as established, the following facts to which both Brady and Williams testified: (1) that Williams was asleep in the back of the car during the whole occurrence and was not drunk, (2) that Williams never consented, either explicitly or implicitly, to allowing Brady to drive, and (3) that Brady had never been allowed to drive Williams' car in the twelve years they had lived together.

We believe that assuming these facts, together with the others not in dispute here, the jury could not have found any state of facts upon which liability as to Williams could be predicated. Therefore, it was error for Williams' motions for a directed verdict and a judgment n. o. v. to have been denied.

As there is no suggestion that Williams was driving, he could be liable only if a) he was guilty of primary negligence in allowing Brady to drive, or b) if Brady's negligence could be imputed to him through the law of agency. We do not believe that, on the facts of this case, the jury could have found against Williams on either theory.

Clearly, as Williams was sleeping in the car before Brady took the keys and never explicitly authorized him to drive the car, and, as he continued to sleep until the occurrence of the accident, so that he cannot be said to have tacitly acquiesced in Brady's operation of the vehicle, he could not be guilty of negligent entrustment. See Rounds v. Phillips, 166 Md. 151, 170 A. 532 (1934).

Nor do we believe that the jury could have found, on the basis of the evidence before it, that there was a master-servant relationship between Williams and Brady so as to hold Williams vicariously liable for the wrong of Brady.

The mere fact that Williams is the stepfather of Brady is not significant as we have consistently held that the head of a family who maintains a motor vehicle for the general use of his family is not liable for the negligence of a member of his family, who is driving the vehicle under a general authority. See Talbott v. Gegenheimer, 245 Md. 186, 189, 225 A.2d 462, 464 (1967); Schneider v. Schneider, 160 Md. 18, 21, 152 A. 498, 499, 72 A.L.R. 449 (1930); Myers v. Shipley, 140 Md. 380, 383-392, 116 A. 645,...