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Martin v. Rossignol

Decided: October 10, 1961.

MARTIN ET AL.
v.
ROSSIGNOL ET AL.



Appeal from the Circuit Court for Montgomery County; Lawlor, J.

Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ. Henderson, J., delivered the opinion of the Court.

Henderson

This appeal is from a judgment for the plaintiff entered by the court, sitting without a jury, in a suit filed by a police officer and the insurance carrier under Workmen's Compensation. The plaintiff was seriously and permanently injured in line of duty while pursuing a motorist, James Kenneth Martin, who was driving a Mercury owned by his father. The appellant raised only two issues on appeal, whether the trial court abused its discretion in refusing to grant a continuance, and whether the plaintiff was guilty of contributory negligence as a matter of law. On the latter question we ordered reargument before the whole Court.

When suit was filed in Montgomery County, Thomas G. Andrew of Baltimore entered his appearance and that of his firm for both defendants. The appearance of J. Hodge Smith of Rockville was also entered for the defendants. General issue pleas were filed, interrogatories were answered by the plaintiff, and in January, 1960, the case was specially set for trial on May 16, 1960. On Friday, May 13, 1960, Mr. Smith met with plaintiff's counsel for the taking of a deposition sought by the defendants and to examine the plaintiff's employment record. Mr. Smith informed plaintiff's counsel that he would seek a removal on Monday upon affidavits already prepared which would be executed over the weekend. But on the morning of trial Mr. Smith stated that he had been unable to obtain the affidavits and filed a motion to strike the appearance of all counsel for the defendants, on the ground that the defendants had left the County without leaving a forwarding address. The court denied the motion. Mr. Smith then filed a motion for continuance on the ground that the defendants were not in court and that Baltimore counsel was trying a case in Baltimore. He did not say that he, Mr. Smith, was otherwise unprepared for trial. Plaintiff's counsel objected, on the ground that if the case were postponed the

plaintiff, due to his declining physical condition, might not be able to testify, and because the medical witnesses had reserved that day for their appearance and were in court. The court denied the motion, and the case then went to trial without a jury.

The appellant relies not only upon the refusal of the motion for continuance but also upon the refusal of motions for a new trial and to strike out the judgment, or reopen the case for additional testimony. The ground of these motions was that Mr. Smith had not been prepared to try the case, and that Mr. Andrew had been engaged in the trial of a case in Baltimore City which had begun on May 9 but had not been completed on May 16.

We find no abuse of discretion in the refusal of the motion for a continuance. Mr. Smith did not inform the court that he was unprepared to try the case. His motion was based primarily on the fact that he could not reach the defendants. Yet it was shown that the change of their address had been filed with the Commissioner of Motor Vehicles, and apparently no effort had been made to notify the defendants of the trial date when the case was set for trial in January. With reasonable diligence it would appear that counsel for the defendants could have learned of the change of address and could have notified their clients of the trial date without waiting until the eleventh hour. The fact that Baltimore counsel was engaged in another court was a circumstance to be weighed but not controlling. See Note, 112 A.L.R. 593, 600. It is generally held that a refusal of a continuance because counsel are engaged elsewhere is not an abuse of discretion if the party is adequately represented by other counsel present. Except for the absence of his clients, Mr. Smith seems to have conducted the defense with vigor and understanding. The cases of Plank v. Summers, 205 Md. 598 and Thanos v. Mitchell, 220 Md. 389, are readily distinguishable, and in the recent case of Eastover Co. v. All Metal Fabr., 221 Md. 428, 437, were described as falling into a "small and exceptional group of cases". Cf. Hohensee v. Wash. Sub. San. Comm'n, 226 Md. 361.

It is well settled that the denial of a motion for a new trial

is not appealable, at least where the trial court fairly exercises its discretion. See B. J. Linthicum's Sons, Inc. v. Stack, 213 Md. 344, 347. If the motion to strike or reopen the judgment could be considered as one to set aside the verdict on the ground of mistake or surprise, we find no abuse of discretion. It would seem to be in the nature of an amplification of the earlier motion for a continuance. There is no showing that the defendant driver had a meritorious defense, or that his testimony would have contradicted that of the plaintiff in any particular bearing upon the only other issue presented in the appellants' brief, as to the contributory negligence of the plaintiff.

The plaintiff testified that he and a fellow officer, Moore, had stopped two vehicles for traffic violations on Georgia Avenue at about 10:30 P. M., when they saw a car approaching at a high rate of speed. Moore tried to stop it with flashlight signals, but the car continued and, indeed, increased its speed. Moore only escaped from being struck by jumping into the ditch alongside the road. The plaintiff testified he believed Moore had been struck and took out after the speeder in his patrol car, with his overhead light flashing and siren sounding at full blast. The speeder turned off the main road, Georgia Avenue, into Weller Road, and turned off his lights. Weller Road, 24 feet wide, runs through a residential district. The plaintiff testified that because of the danger to other moving traffic and the high rate of speed it was his "responsibility to get him stopped as quickly as I could before he damaged any other vehicle". When he had "closed up the gap", a glance at his speedometer showed that it registered over 100 miles per hour. At one intersection they narrowly missed another car in the act of crossing. The chase then continued along Weller Road for a distance of 4 or 5 blocks.

The plaintiff was familiar with Weller Road and knew that it came to a dead end about 500 feet beyond its intersection with Bushey Drive. He thought he would be able to corner the offender in the cul de sac. However, the latter, without decreasing his speed, attempted to make a left turn into Bushey Drive. The car tipped and when the driver ...


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