Waltzinger v. BirsnerWaltzinger v. Birsner
- Reporters:
- ,
- Before:
- Collins
delivered the opinion of the Court.
Here are appeals from judgments entered in favor of the appellees, Lidie C. Birsner, Margaret H. Connor and Loma W. Tuttle, and against the appellants, August F. Waltzinger and Helen M. Waltzinger, in a trial before the court and a jury, for injuries sustained in an accident caused by the al
Loma W. Tuttle, 81 years of age, one of the appellees and the mother of one of the appellants, August F. Waltzinger, on July 15, 1954, was living at a nursing home known as College Manor. She had been living for about ten months each year with her daughter in New York and spent about two months each year with the appellants. She came to visit the appellants in March, 1954. After she had been there about six weeks it was necessary for the appellants to take a business trip so they put Mrs. Tuttle in that nursing home. Mr. Waltzinger testified that prior to July 15, 1954, he had been sending his mother, at first $70.00, then $80.00, and finally $100.00 per month for her support. However, she was “very much in charge of her own affairs”. After the accident she received some money from her husband, from whom she was apparently separated. Mr. Waltzinger also had helped Mrs. Connor “out with money” at various times before the accident. Testimony was offered that, prior to the accident, Mrs. Tuttle was admitted to Mercy Hospital in October, 1953. On October 25th she seemed confused and on November 7, 1953, from time to time she presented signs of senility. She was a charming old lady, moderately forgetful, on the whole remarkably well preserved, oriented as to time and place, exceedingly well groomed, and cooperative and interested in several things, including boxing.
The appellants owned a 1954 Cadillac sedan and on July 15, 1954, accompanied by the appellees, Lidie C. Birsner and Margaret H. Connor, sister and mother of the appellant Helen M. Waltzinger and visiting her at the time, went to a restaurant for dinner. After dinner at the restaurant those four drove out to see Mrs. Tuttle at the nursing home and drove into the driveway of the College Manor property. Mrs. Tuttle at that time was on the lawn and Mr. Waltzinger stopped the car on the left side of the driveway, which had a one percent down grade, thirty or forty feet from the office of the nursing home, located to the right of the car. Mrs. Waltzinger had been seated on the right front seat of the car. When Mr. Waltzinger brought his mother to the car, Mrs. Waltz
As a result injuries were sustained by the appellees. From judgments entered for them, the appellants appeal. It is contended that there was no legally sufficient evidence showing that the proximate cause of the accident was attributable to any negligence on the part of the appellants, or either of them, and that their demurrer prayer should have been granted.
“The Court instructs the jury that if it finds from the evidence that on July 15, 1954, the plaintiffs as invited guests of the defendants, August F. Waltzinger and Helen M. Waltzinger, were seated in their automobile which was standing on a one per cent down grade upon a driveway of the College Manor Home in Lutherville, Baltimore County; and if the jury further finds that the defendant, August F. Waltzinger, without stopping the engine of the automobile or moving the selector lever from its position for forward movement, permitted another person whom he had invited to ride in the automobile to enter it through said door, and that the defendant, August F. Waltzinger, left the automobile with no one in control of it; and if the jury further finds that, while he was away from the automobile, it was caused, without any act or intervention on the part of the plaintiffs, to move forward upon the driveway with increasing speed and to strike guard posts along the roadway and finally to leave the roadway and collide with a tree, and that the plaintiffs thereby sustained injuries, without any want of ordinary care and prudence on the part of the plaintiffs directly contributing to produce their injuries, then the verdicts of the jury must be for the plaintiffs, Lidie C. Birsner, Margaret H. Connor and Loma W. Tuttle.”
Of course, in deciding whether the demurrer prayer should have been granted, this Court should resolve all conflicts in the evidence in favor of the appellees, and should assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom, which tend to support the appellees’ right to recover. Baer Bros., Inc. v. Keller, 208 Md. 556, 558, 119 A. 2d 410. We will therefore recite the evidence in a light most favorable to the appellees.
“Your Cadillac Hydra-Matic drive will provide safe parking on hills or steep inclines. Simply turn the ignition key ‘Off’ when the selector lever is in ‘Dr’ or ‘Lo’. Then raise and move the selector lever to ‘R’. As an additional safety measure, apply the hand brake and toe in the front wheels to the curb. * * * To prevent a parked car from rolling on slight grades it is well to form the habit of setting the hand brake which is conveniently located to the left of the steering column. To apply this brake, merely step on the brake pedal and pull the hand brake handle straight back. It locks automatically. A ‘tell-tale’ light lights up when the hand brake and the ignition are on. To release the brake, rotate the handle left, and it will return to its normal position. When the handle pulls out more than five inches it should be adjusted by your Cadillac Dealer. When parking on hills, turn the wheels toward the curb, place the Hydramatic selector lever in ‘R’ Reverse, which locks the transmission, and apply the hand brake.”
Mr. Waltzinger testified that he did . not’ know, when he left the passengers in the automobile, whether he had the automobile brake on or in what position the gear selector was. He also admitted that it would be highly unlikely that Miss Wilson could have started the engine just in the act of moving over on the seat. He made the following answers to the following questions. “Q. Well, isn’t this what probably hap
A Baltimore County Police officer testified that, when he arrived at the scene, he talked to Mr. Waltzinger and wrote down what he told him. He said the information in his official report came from Mr. Waltzinger. That report offered in evidence, without objection, states in part that Mr. Waltzinger “had parked his car with the motor running and in drive on College Manor property with four women seated in the car and a Miss Virginia Appleton Wilson F/W, 72, of College Manor Home for the Aged, was getting in the car from the driver’s side and was sliding over to the middle of the car and apparently hit the gas pedal of the auto and sending it about 100 feet up the driveway and going down a slight embankment taking about four poles and then coming to a stop against a tree. Mr. Waltzinger was inside the building at the time the car started moving.”
Code, 1951, Article 66)4, Section 212, provides: “(Unattended Motor Vehicle.) No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key, or when standing upon any perceptible grade without effectively setting the brake thereon and turning the front wheels to the curb or side of the highway.” Appellants contend that the automobile was not unattended when Mr. Waltzinger went into the office. This Court, in interpreting the above Section, said in
Lustbader v. Traders Delivery Co.,
193 Md. 433, 439, 67 A. 2d 237: “The statute does not define ‘unattended’, but a reasonable interpretation is that it
Appellants rely on the following quotation from
Shafer v. State,
171 Md. 506, 514, 516, 189 A. 273, where Judge Bond said: “And ‘in matters of proof we are not justified in inferring from mere possibilities the existence of facts.’
Balto. & O. R. Co. v. State, use of Savington,
71 Md. 590, 599, 18 A. 969, 971;
Culler v. Standard Oil Co.,
127 Md. 405, 411, 96 A. 558. Proof directs a selection from among possibilities.
Regent Realty Co. v. Ford,
157 Md. 514, 521, 146 A. 457;
Realty & Mtge. Co. v. Ulrich,
164 Md. 666, 670, 165 A. 708. * * * ‘There must be proof of the essential facts to fix liability upon a party charged with the commission of a wrongful act; and even a scintilla of evidence or a mere surmise that there may have been negligence on the part of the defendant will not justify the court in submitting the case to the jury. There must be, in a case like the present, some reasonable evidence of well defined acts of negligence, as the cause of the injury complained of.’ ” Mr. Waltzinger’s statement to the police, which was admitted into evidence without objection,
(Chesapeake Co. v. Goldberg,
107 Md. 485, 489, 69 A. 37), amounts to much more than a scintilla of evidence or a mere surmise of the facts set forth in the trial court’s Instruction No. 3,
supra. Acme Poultry Corp. v. Melville,
188 Md. 365, 372, 53 A. 2d 1;
Shelton v. State,
198 Md. 405, 411, 412, 84 A. 2d 76. It was said in
American
The appellants further except to Instruction No. 3, supra, on the ground that the testimony ignored the fact that the automobile was caused to be started by an intervening agency, and only excepts the plaintiffs themselves, and that there was nothing in the instruction as to the fact that the automobile was started by an intervening agency and not by either of the defendants. For the same reason, they objected to Instruction No. 4, which follows:
“The Court instructs the jury that if it finds from the evidence that the plaintiffs, Lidie C. Birsner, Margaret H. Connor and Loma W. Tuttle were injured by reason of the concurrent or successive negligence on the part of the defendants, August F. Waltzinger and Helen M. Waltzinger, and on the part of Miss Virginia A. AVilson, another invited guest in the automobile of the defendants, and that the negligence of each of these persons was a contributing proximate cause of the injuries to the plaintiffs, then all of such negligent persons, Mr. and Mrs. Waltzinger and Miss Wilson, are jointly and separately liable for any injuries proximately resulting from their joint negligence. It is no defense for one or more of such negligent persons to show that another of them was also negligent, that is to say, for the Waltzingers to show that Miss Wilson was also negligent. The degree or proportion of negligence which may b‘e attributed to each of such persons guilty of negligence is not to be considered by the jury in arriving at its verdict.”
Of course, the court’s charge to the jury must be considered as a whole. West v. Belle Isle Cab Co., 203 Md. 244, 250, 100 A. 2d 17, and cases there cited. The court further charged the jury as follows:
“I instruct you that the mere happening of the accident complained of raises no presumption of negligence on the part of defendants, but to entitle the plaintiffs, or either of them, to recover in this case the jury must be satisfied by a preponderance of the evidence that the accident sued on was caused by some act of negligence on the part of the defendant which was the proximate cause or proximate contributing cause of such accident, and if the jury find the sole proximate cause of the accident was some intervening cause without which the accident would not have occurred, your verdict must be for the defendants.”
In
Restatement of the
Law,
Torts,
Negligence, Section 441, comment (c) on subsection (1) discusses dependent and independent intervening forces and states in part: “An independent force is one the operation of which is not stimulated by a situation created by the actor’s conduct.” Comment d under Section 441 (2) states: “The active operation of an intervening force may or may not be a superseding cause which relieves the actor from liability for another’s harm occurring thereafter. * * * A force due to an act of a third person which is wrongful towards the other who is harmed may be only a contributory factor in producing the harm. If so, both the actor and the third person are concurrently liable. This is so, although the actor’s conduct has ceased to operate actively and has merely created a condition which is made harmful by the operation of the intervening force set in motion by the third person’s negligent or otherwise wrongful conduct.” Of course, one cannot be said to be negligent merely because he fails to make provision against a happening which he could not be reasonably expected to foresee.
McVey v. Gerrald,
172 Md. 595, 602, 192 A. 789, and cases there cited. It could hardly be held as a matter of law that one who leaves an automobile, having a hydro-matic transmission, with the motor running, and with the lever directly under the wheel, should not reasonably expect that a person sitting under that wheel might move the lever and step upon the ac
“In the
Wilkinson
case above the defendant was constructing a bridge over a highway. It allowed a rope to hang loosely from above. An unknown person dangled the rope about and struck the horse of the plaintiff who was driving through. The horse ran away and injured the plaintiff. It was held that the negligence of the defendant in allowing the rope to hang over the street was the proximate cause of the
In Sanders v. Williams, 209 Md. 149, 152, 120 A. 2d 397, it was said: “As is true of primary negligence, one measure of contributory negligence is the need, in a given situation, to anticipate danger. Presence or absence of reasonable foresight is an essential part of the concept. One is charged with notice of what a reasonably and ordinarily prudent person would have foreseen and so must foresee what common experience tells may, in all likelihood, occur, and to anticipate and guard against what usually happens. On the other hand, one is not bound to anticipate every possible injury that may occur or every possible eventuality.”
We cannot say in this case, as a matter of law, that the negligence of Mr. Waltzinger was not the proximate cause of the injuries here, and that the demurrer prayer of the appellants should have been granted. There was no exception to that portion of the trial court’s instructions which stated in substance that if Mr. Waltzinger was guilty of negligence, Mrs. Waltzinger, as a co-owner of the car present at the time of the accident, would be liable as well as Mr. Waltzinger for the consequences of his negligence. There was likewise no challenge to the correctness of this ruling in this Court.
The appellants further contend that the suit of Loma W. Tuttle was not instituted with her knowledge or consent or on her behalf by anyone having authority to do so because the declaration alleged that in the future she would be totally prevented from performing any duty or engaging in any activity requiring normal use of her body, facilities, or senses; and that during the trial of the case it was testified that she did not even know she had been in an accident. When the appearance of an attorney is entered on record it is considered as done by the authority of the party. A presumption in favor of the authority of the attorney to appear arises from the mere fact of the appearance. This presumption is rebuttable, but the proof necessary to overcome it should be
The appellants further claim that Loma W. Tuttle was not legally competent to maintain- a suit for the medical, hospital, nursing, and institutional expenses, hereinafter referred to as medical expenses, incurred as a result of the injuries received in this accident. $5,000.00 of those expenses were paid from a policy of accident insurance carried by the appellants. Mr. Tuttle, from whom she apparently was separated, contributed some money toward those expenses, and the balance was paid by Mr. Waltzinger. In Mrs. Tuttle’s case the declaration as to damages alleged that she “was put to expense for her hospitalization and for the services of the physicians and surgeons required to treat and administer to
The trial judge instructed the jury that, if it found a verdict for Loma W. Tuttle, it should consider the reasonable value of the hospital, nursing, medical attendance and institutional care in the past as well as what would be incurred in the future, and that such damages were not to be reduced because of any money received by her under the defendants’ accident policy. The exception made by the defendants to the charge of the trial judge permitting the jury to include the medical expenses of Mrs. Tuttle in her recovery was “for the reason that the evidence shows that the legal liability and the right to recover for such medical, etc., attention was in her husband, Mr. Tuttle.” Therefore, we can only consider the specific grounds of objection distinctly stated. Rules of Practice and Procedure of this Court, Part 3, Item 3, Rule 6 (d), Appeal. There was no objection to that part of the charge on the ground that Mr. Waltzinger had paid part of the expenses and, therefore, that Mrs. Tuttle could not recover for those expenses paid by him. That Mr. Waltzinger had paid part of Mrs. Tuttle’s medical expenses and, therefore, that she should not recover what he had paid, was not raised below in any way. Therefore, that question is not before us here. Rule 9, Rules of the Court of Appeals, Relating to Appeals Generally. In the case of
Sezzin v. Stark,
187 Md. 241, 256, 49 A. 2d 742, it was stated that the husband was primarily responsible for his wife’s medical expenses and that the wife could recover for medical expenses only where it could be shown that the wife, either expressly or impliedly assumed the obligation for the medical expenses or had paid for them. She was there allowed to sue for the medical expenses given on her credit alone. The wife was a married woman, living with her husband, and merely temporarily separated because of his services with the Armed Forces. In the instant case Mrs. Tuttle lived with her daughter ten months in the year
The appellants further contend that it would be against public policy to permit a recovery by the appellee, Roma W. Tuttle, because of the family relationship existing between her and the appellants under all the circumstances of such relationship. They rely on the case of
Myers v. Myers,
185 Md. 210, 44 A. 2d 455, which in no way seems to be helpful on the question here involved, and on
Schneider v. Schneider,
160 Md. 18, 22, 23, 24, 152 A. 498, in which it was held that the mother of a minor son, being jointly with the father the natural guardian of the son, could not sue the son for injuries caused by his negligence because the ordinary position of parent and guardian of a minor and that of plaintiff seeking to recover from the minor were positions which cannot both be occupied by one person at one and the same time. The problem before us in this case is quite different. The appellants rely also on
Weyen v. Weyen,
165 Miss. 257, 139 So. 608, 610, 856. There Mrs. Kate Weyen sued her son, Charles Weyen, and his wife for personal injuries inflicted upon her in a collision of a motor car driven by Mrs. Charles Weyen, in which Charles was also an occupant, and in which Mrs. Kate Weyen was riding as a guest of her son. Charles there contended that there was no liability against him because of the relationship of mother and son, a family
As we find no error the judgments will be affirmed.
Judgments affirmed, with costs.