Opinion
[No. 407, September Term, 1963.]
Decided July 2, 1964. Motion for rehearing filed July 20, 1964, denied July 30, 1964.
ATTORNEYS — Right To Counsel — Appellant Had Not Been Prevented From Obtaining Counsel — Civil Cases — Court Was Not Required To Appoint. In the instant civil case it was held that the appellant's contention that the lower court erred in not letting her get counsel was without merit. There was nothing in the record to show that the court in any way prevented her from obtaining counsel, and of course the court was not required to appoint counsel in this civil litigation. The record did show that the trial judge liberally assisted the appellant during the trial. Further, the transcript of the proceedings on appellant's motion for a new trial (at which an attorney represented her) disclosed that the appellant was advised by the court at a pre-trial conference that she could have counsel but she declined legal assistance. Therefore, the contention could not prevail. pp. 415-416
WITNESSES — Expert — Was Allowed To Testify Although Outside Courtroom During Appellant's Case — Testimony Did Not Depend On Evidence Adduced By Appellant — Called To Refute Claims Made By Appellant — Failure To Object. In the instant civil case the appellant contended, without success, that a witness, Dr. Filtzer, should not have been allowed to testify because he was permitted to remain outside the courtroom while the appellant put on her case. The Court stated that Dr. Filtzer was called by the defense and the appellant indicated her willingness for him to testify. His testimony did not depend upon the evidence adduced by the appellant in putting on her case. It is a long established practice in this State to permit an expert to express an opinion based upon facts in the evidence which he has heard or read, upon the assumption those facts are true. However, in this case, the doctor was not asked to give his opinion upon the facts. He was called by the defense for the purpose of refuting certain claims made by the appellant. Finally, no objection was made by appellant to Dr. Filtzer as a witness nor to any specific portion of his testimony. p. 416
EVIDENCE — Hospital Records — Which Could Not Be Located At Appellant's First Trial Were Admissible At Second Trial — No Other Objection Noted. The appellant in this case objected to the admission into evidence of a hospital record because no one had been able to locate the record at her first trial. No other objection was noted, and after the court had assured itself the record was made in the regular course of business, it was subsequently read to the jury without further objection. It was held that the record was properly admitted for whatever probative value it had in the case. p. 416
APPEAL — Dismissal Of — Within Court's Discretion — Motion Denied Here. It is within the discretion of the Court of Appeals whether to dismiss an appeal or not, and in the instant case, under the circumstances the Court held that the motion to dismiss should be denied. p. 417
EVIDENCE — Petition To Strike Statements Of Opposing Counsel — Statements Were Not Evidence And Were Immaterial — Petition Denied. In the instant appeal, before argument, the appellant filed a petition requesting that the court strike certain statements made by opposing counsel at the hearing on appellant's motion for a new trial. It was held that the statements were in no way evidence and were immaterial. Therefore, the petition was denied. p. 417
H.C.
Decided July 2, 1964.
Motion for rehearing filed July 20, 1964, denied July 30, 1964.
Appeal from the Superior Court of Baltimore City (CULLEN, J.).
Suit for damages for personal injuries by Grace Wilhelm against Paul Edward Burke which was remanded for a new trial on the issue of causal relationship between the accident and the loss of pigmentation of the skin of Mrs. Wilhelm, and, if any, the amount of damages for such loss. From the jury's finding of no causal relationship and the judgment in favor of the defendant entered thereon, the plaintiff appeals.
Judgment affirmed. Appellant to pay the costs.
The cause was argued before HENDERSON, HAMMOND, MARBURY and SYBERT, JJ., and ANDERSON, J., Associate Judge of the Sixth Judicial Circuit, specially assigned.
Mrs. Grace Wilhelm, in proper person, for appellant.
William B. Somerville, with whom were Smith, Somerville Case, J. Kemp Bartlett, III and Bartlett Hicks on the brief, for appellee.
This is the second appeal stemming from a suit filed on behalf of Grace Wilhelm and her husband. They had obtained judgments against the appellee, Paul Edward Burke who, while operating an automobile negligently struck the rear fender of a parked car in which Mrs. Wilhelm was seated, resulting in injuries to her. Alleging that certain errors committed by the trial court reduced the amounts of the jury verdicts obtained by them, both the husband and wife appealed.
As a result of that appeal, this Court reversed in part the judgment in favor of Mrs. Wilhelm and remanded the case for a new trial. Wilhelm v. State Traffic Comm., 230 Md. 91, 185 A.2d 715. The issues were limited on remand to the causal relationship, if any, between the accident and the loss of pigmentation of the skin of Mrs. Wilhelm's face, which developed shortly after the accident. If that issue were determined in her favor, the opinion further stated, the jury then was to determine the amount of damages.
At the second trial the evidence produced on behalf of the appellant was limited to the testimony of the Wilhelms and three photographs of Mrs. Wilhelm's face, offered to show the condition of her skin over the eye which allegedly was bruised in the accident. The only medical evidence was produced by the defense. Doctor David L. Filtzer, an orthopedic surgeon who had treated Mrs. Wilhelm, testified that when she visited him she stated she had not struck her head and that his examination did not disclose a bruise or an abrasion on her face. Then the relevant portions of the record of the Union Memorial Hospital were read into evidence. After the court's instructions to the jury, to which there were no exceptions by the appellant, the jury returned a verdict finding no causal relationship between the accident and the loss of pigmentation.
Both at the second trial and in this Court Mrs. Wilhelm conducted her own case. She argues here that the lower court "erred in not letting Plaintiff get counsel." There is nothing to show that the court in any way prevented her from obtaining counsel, and of course the court was not required to appoint counsel in this civil litigation. The record does show affirmatively that the trial judge carefully explained to the jury and opposing counsel that Mrs. Wilhelm was representing herself and was entitled to the same respect and consideration as though she had an attorney. In addition, with the consent of the parties, the trial judge assisted liberally with the interrogation of appellant's own witnesses. The record before us contains the transcript of the proceedings on appellant's motion for a new trial (at which an attorney represented her) and it discloses Mrs. Wilhelm was advised by the court at a pre-trial conference she could have counsel and she had declined legal assistance. This contention therefore can not prevail.
A second argument, as we understand it, is that Dr. Filtzer was permitted to remain outside the courtroom while she put on her case and because of this should not have been allowed to testify. Dr. Filtzer was called by the defense, and Mrs. Wilhelm, though she did not summon him, indicated her willingness for him to testify. His testimony did not depend upon the evidence adduced by the appellant in putting on her case. It is a long established practice in this State to permit an expert to express an opinion based upon facts in the evidence which he has heard or read, upon the assumption those facts are true. Twombley v. Fuller Brush Co., 221 Md. 476, 158 A.2d 110; Thompson v. Phosphate Works, 178 Md. 305, 318-19, 13 A.2d 328. However, in this case, the doctor was not asked to give his opinion upon the facts. He was called by the defense for the purpose of refuting certain claims made by the appellant. Finally, no objection was made by appellant to Dr. Filtzer as a witness nor to any specific portion of his testimony.
A final contention by the appellant is the admission into evidence of the hospital record from Union Memorial Hospital, where Mrs. Wilhelm was a patient after the accident. Her objection was that no one had been able to locate the record at the first trial. No other objection was noted, and after the court had assured itself the record was made in the regular course of business, it was subsequently read to the jury without further objection. The record was properly admitted for whatever probative value it had in the case.
In Anderson v. Hull, 215 Md. 476, 483, 138 A.2d 875, Chief Judge Brune observed: "We are well aware of the complications which often flow from litigants undertaking to handle their own cases, but their right to do so has long been recognized in this State. Henck v. Todhunter, 7 Har. J. 275." In appellant's brief, confusingly interspersed throughout the contention first discussed were various independent questions of law and fact raised for the first time in this Court. After considering them nevertheless, we are unable to find any present grounds for reversal.
The appellee moved to dismiss the appeal pursuant to Maryland Rules 835 b, and 836 for failure of the appellant to have printed as a part of the record extract the judgment appealed from or the portions of the evidence necessary for the determination of the questions raised, both of which are required by Rule 828 b. As we have had occasion to state as recently as Bergen v. State, 234 Md. 394, 199 A.2d 381, under that Rule it is within the discretion of this Court whether to dismiss an appeal or not. The necessary portions of the record have been supplied by the appellee. Under the circumstances we decline to dismiss the appeal, and the motion to dismiss it is therefore denied.
In a petition filed with this Court on February 8, 1964, after the briefs in the appeal were filed but before argument, the appellant requested that we strike certain statements made by opposing counsel at the hearing on her motion for a new trial. Although the appellant did not comply with Rules 306 c and 855 c, an order of this Court was passed February 11, 1964, deferring action on the petition until after the appeal was argued. The statements were in no way evidence and were immaterial. The petition must be denied.
On the merits of the case we find no reversible error, and the judgment is therefore affirmed.
Judgment affirmed. Appellant to pay the costs.