MacK Trucks, Inc. v. Webber ( 1975 )

Moore, J.,

delivered the opinion of the Court. Powers, J., dissents and filed a dissenting opinion at page 278 infra.

This appeal arises following an award of compensatory damages in the sum of $380,000 to Lawrence Delbert Webber (plaintiff-appellee)* ¹ by a jury in the Circuit Court for Cecil County (Mackey, J. presiding) in an action for personal injuries against Mack Trucks, Inc. (appellant-defendant) wherein the latter conceded its negligence. Two grounds of error are claimed: (a) that Mack Trucks’ iñdtrotf’:fdr: ■sü'mm-ary .judgmént -based, ¡üpon- The -.three-year statute of limitations was improperly denied² and (b) Alternatively; That it--was'an-.abuse of ,discretjo,n for ;.the t-fiál1 *cóuftTP deny .Mack Trucks’-¡second motipn -fpr. á new tfiál, filed;-pursuant to Maryland Rule 625 b) ¡53 days after t'fiá-l,--ón the basis of newly disco.vfer.ed evidence: ", • -, -,;

!5 'MrrWeb'béf/théri' 22 years:-old,-was employed as-a; driver 'of ^Tractor and; tráiler -by Trego-'Brothers-, Inc.; a' Maryland .cbrjjdr’atióií;;nh ■ Eebr'iiány• ‘26/11970'. On • that: date «he-¡was involved! in 'iv/ó 'áceidénts!'Tn -the morning--a broken hose-in ;tHe ah; brake’Tj/fetenr caused him -to -have a- low-spefed eólíisi'ofr 'With' an a-útdmobilé on U.S;-Route-'40 in Cecil ’County! lh that incident'the car received'minor-damage and appellee’s ‘truck was unscathed, as were' -appellee and the driver of the other’’vehicle’. After repairing the'brake, system, appellee resumed operation <• of; his-TractPrTrailer/ That ■‘afternoon,-while-.d-riving on Interstate. Route 95 jn Harford County with a load of approximately seventeen tons of, rpck salt, an aluminum spring bracket cap on the tractor broke cáusin’g disengagement-of; t-hé -spring-suspension system, resulting in complete loss of control -by the. driver. While traversing .approximately one-half mile of a gentle downhill gfaáe'the truck' moved 'inexorably from- the rightr-hand northbound lane through the passing‘lane; onto the grassy medial, onto .the southbound, or “wrong” lanes, and finally into a,ditch .heybnd'thé 'southbound lánes. The tractor-trailer overturned and caught fife. Appellee' w'as tfapped inside oifitik'rescued .byUwo passing truck drivers: -He sustained ■ serious injuries.³-• ' . f. -,- .... -

Januafy’22,T:973, a little more than one month prior to the; end of'the--three-year period-of limitations," Mr.-Webber bhohgHU'an■'-action' against"1 Mack Trucks,. .The,; ;as--the manufacturer of the tractor, alleging negligence, breach of warranty, and strict liability. Plaintiff-appellee incorrectly recited in the declaration that the accident in which he was injured had occurred at the sftus of the minor morning accident in Cecil County — and also named as a second party defendant the driver of the passenger vehicle which had been involved in the earlier mishap. The facts alleged were that defendant had manufactured and sold the tractor-trailer and that

“suddenly and without warning a mechanical or structural defect or failure on the aforesaid tractor caused .the Plaintiff to lose control of the aforesaid tractor and dump trailer; and as a direct result the Plaintiff was involved in an accident with another vehicle ... in .which accident the Plaintiff was injured and damaged.” (Emphasis added.)

•' Mack Trucks filed geiidra! issue pleas to the negligence and warranty counts" and served interrogatories on' plaintiff on March 15, 1973.⁴ Interrogatory number 5 was: “Give a concise statement of the facts relied upon by you to support your claim that the defendant was negligent.” On March 29, plaintiff responded to the interrogatories and his answer to number 5 was:

“A spring bracket cap of a tractor/dump-trailer that was. manufactured by the defendant broke causing disengagement of the spring suspension system of the vehicle operated by the plaintiff which resulted ■ in the upset and crash of the vehicle. The cap broke because of a mechanical deficiency in the cap. The mechanical deficiency was caused by the defendant, its agent, or employees.”

Another answer stated that the accident had been investigated by Trooper Daniel H. Mahan. (It was eventually discovered that Officer Mahan had investigated the morning accident but a different officer had investigated the serious afternoon accident in which Mr. Webber was injured.)

On January 9, 1974, with the consent of appellees, Mack Trucks, Inc. filed a “Third Party Complaint” pursuant to Maryland Rule 315. b against Arrow Aluminum Castings Company, an Ohio corporation, the manufacturer of the defective aluminum spring bracket cap.

On May 30, 1974, Mack Trucks deposed Mr. Webber. On that occasion it became clear that Mr. Webber had been involved in two accidents on the same day, in two different counties, and that the site of the accident recited in the declaration was not the site at which he had been injured. (As previously stated, no personal injuries and no significant property damage were sustained in the morning occurrence-in Cecil County.)

Appellant thereupon moved for summary judgment on the ground that appellee had not been injured or damaged in an accident on U. S. Route 40 in Cecil County. Appellee’s counsel, James J. White, III, Esq., interposed an answer to the motion for summary judgment wherein it was stated that the allegation in the declaration that Mr. Webber’s injury was sustained at the intersection of U.S. Route 40 and Maryland Route 272 was inadvertent and that leave to amend the declaration would be requested. Annexed to the answer was an affidavit of Mr. White in which it was averred that he was unaware that Mr. Webber had been involved in two accidents until May 30,1974.⁵

Judge Mackey denied defendant’s motion for summary judgment and granted plaintiff leave to amend. On September 3, 1974, plaintiff filed an amended declaration which omitted the cause of action alleged against the original co-defendant and correctly recited the location of the accident which caused his injuries. The negligence allegations were identical to those contained in the original declaration — “that a mechanical or structural defect or failure . . . caused the plaintiff to lose control of the aforesaid tractor. . . .”

On September 9, 1974, appellant filed general issue pleas to the counts sounding in negligence and breach of warranty,⁶ and also specially pleaded that the action was barred by limitations. The special plea was based on Mack Trucks’ position that the amended declaration stated a new cause of action and therefore was not timely. It appears that the trial court ordered the submission of memoranda on the issue of limitations and the record discloses that a hearing thereon was held in open court on November 15, 1974. On December 5, 1974, the court filed an “Opinion in Support of Denial of Plea of Limitations” and the case was set in for trial on January 27, 1975.⁷ The trial was brief. The only testimony received was that of Webber, his own examining physician, Dr. Eli Lippman, an orthopedic surgeon, and the State Trooper who investigated the afternoon accident. Hospital records and medical bills were stipulated, as was actuarial testimony and the report of Mack Trucks’ examining orthopedic surgeon, Dr. G. Edward Reahl, Jr., dated January 22, 1975. The jury’s verdict in favor of appellees was returned at 5:10 p.m. on January 27,1975.

Appellant moved for a new trial on the grounds that the award of $380,000 was excessive and that the trial court erred in its instructions to the jury. After a hearing on February 25,1975 Judge Mackey denied the motion.

On March 19, 1975, Mack Trucks again moved for a new trial. On this occasion the motion was pursuant to Maryland Rule 625 b claiming newly discovered evidence. As a result of an anonymous telephone call to appellant’s counsel after the trial, appellant charged that it had obtained previously unavailable evidencié'reflecting a. greater, éámlhg capacity on plk.int.iffs part'than bad beeii before'the court at trial. At a. hearing on .March 27,.T975''thé motion took‘denied in a ruling from the bench. The 'trial court Held that appellant;, through, the exercise of due diligence prior to and during 'trial,, should' have 'bébri'aware''bf" Wébber’s';ihcoihe-gródúcihg' ‘activities. since'the'dateafthe'ácci'd.e’flU , ‘ 1

IMack'Truck's;' The.,' raises two'contentions' here. It.1 argues-that its'plea oflimitatidris should.nave barred plaintiffs suit because!'fhe'.améjidéd declaration’ stated a new cause of action. The second point®appellant makes Is. that if the claim wa:S not!barred'by.'..liriiitatMns, a rieVtrial should have been' ordered, .! , . . • .’■■•! ’ :

I

THE STATUTE , GF LIMITATIONS

'‘The'iaw;'is cib'ar 'thafi'f an amended' 'declaration sets out® a: neto eadsebfa'etlbh-the’’tibíe period:fób■limitationspurposes' is® meáSured'’’froih® the-daté'pnbwhich the causd'of action accrued to;; the !:dáté‘' 'the * 'amended' pleading1 ' is ® filed: If,' however, rib new cause is set out by'the amendhieht then'the doctrine® df; relation back applies/' arid the question'-‘of limitations’is determined with‘reference-to. the'date of the original'filing. Crowe v. Housework, 272 Md. 481, 325 A. 2d 592 (1974); Doughty v. Prettyman, 219 Md. 83, 148 A. 2d 438 (1959); Cline v. Fountain Rock Lime and Brick Co., Inc. 214 Md. 251, 134 A. 2d 304 (1957); Myers v. Aragona, 21 Md. App. 45, 318 A. 2d 263 (1974).

"As ®judge!¡DáVi'dsón-notéd-'in Davis v. Frederick County Board of Commisioners; 25 Md. App. 68, 69, 334 A. 2d 165 (1975); Mr. Justice Cardozo declared in United States v. Memphis Cotton Oil Co., 288 U. S. 62, 67 (1933) that:

“A ‘cause of action’ may mean one thing for one 'purpose'® and •something’ different for-- another.;It - may-: mean-.one thing .when the .question- is whether) -it is good upon demurrer;- andsomethirig- different when there is a question of the amendment df k pleading or the application of the principle:of res : judical a.'’

Here we must determine what a “cause of action” is in the context of an amendment to a declaration. We note, at the outset, that in Crowe v. Houseworth, supra, where the Court of Appeals held that the addition of a new party plaintiff will survive a plea of limitations, Judge Singley stated:

“As regards amendment of the averments of a declaration, the Court has applied the doctrine of relation back with a considerable measure of liberality.” 272 Md. p. 487.

Later on, Judge Singley adopted the view of Mr) Justice Holmes speaking for the Supreme Court in New York Central & H.R.R. Co. v. Kinney, 260 U. S 340, 346 (1922), cited with approval in Doughty v. Prettyman, supra:

“. . . when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because oj' specified conduct, the reasons for the statute of limitations do not exist, and we are of the opinion that a liberal rule should be applied.” (Emphasis added.)

In Maryland, Zier v. Chesapeake Beach R. Co., 98 Md. 35, 56 A. 385 (1903) remains the leading, case concerning the amendment — new - cause of action question. See, e.g., Brooks v. Childress, 198 Md. 1, 81 A. 2d 47 (1951); Stake v. Arundel Park Corp., 218 Md. 484, 147 A. 2d 427 (1959); and Myers v. Aragona, supra.

In Zier the widow of a railway fireman brought an action in negligence against his employer, ‘>he alleged that ihe negligence of either the defendant’s officials or its employees caused the fatal injuries sustained by her husband. In order to avoid a certain nonsuit, based on the fellow-servant rule, she amended one count of her declaration to charge defendant with negligence in selecting fellow employees of the decedent.⁸ Such amendment was made after the period of limitations had expired. The learned Chief Judge McSherry, writing for the Court, discussed in detail the rationale for permitting certain amendments even after the expiration of the statutorily prescribed period of limitations:

“ The institution of a suit arrests the running of the Statute of Limitations, and the general rule is that where the period of limitations has not elapsed before the suit was brought a mere amendment of the declaration, when the cause of action remains the same, will not warrant the filing of a plea of limitations even though the statutory period has intervened between the time when the cause of action accrued and the date of making the amendment. The reason for this rule is that the bringing of the suit stops the running of the statute and consequently so long as the suit proceeds for the same cause of action the bar of the statute cannot attach. When, however, by amendment the cause of action is changed, a new suit is begun when the amendment is made, and if between the accruing of that cause of action and the date of the amendment, which for the first time invokes that cause of action, the period of limitations has supervened, then the plea may be interposed to that new suit.” [Emphasis in original.] 98 Md. at 40-41.

He then proceeded to explain why the plaintiff’s amendment in Zier did not state a new cause of action:

“The fact that the narr was insufficient in law — that it did not accurately and formally set forth the real cause of action — did not prevent the suit itself from being a pending suit wherein the gravamen was the negligence of the defendant. When the amendment was made precisely the same cause of action was declared on. It is true it was imperfectly stated in the first count, but in the second it was correctly set forth. . .. [T]he suit to recover for the defendant’s negligence was precisely the same after the amendment had been made that it was antecedently. The statement of the cause of action was different but the cause of action itself was identical. Injury resulting in death is what occasioned the suit. The imperfect statement of the case did not cause the correct statement of it to be a different cause of action. Being the same cause of action the accurate statement of it in the amended declaration did not convert the original suit into a new and different suit; and therefore did not warrant the filing of any other plea of the Statute of Limitations than such as could have been interposed to the original narr.” [Emphasis in original.] 98 Md. at 42, 43.

We have quoted at such length because Judge McSherry’s language is so readily applicable to the instant case. Indeed, plaintiff here has, if anything, a stronger cause for his amendment than did Mrs. Zier, because Mr. Webber’s original declaration was not clearly insufficient in law. Md. Rule 301 e provides, in pertinent part, that “it shall not be necessary to state time or place in a pleading except where time or place forms a part of the cause of action or ground of defense.” The discussion in 2 Poe, Pleading and Practice (6th ed., 1970) § 556 is quite instructive. The only instances there mentioned where location is of the essence and therefore must be pleaded are actions in ejectment or dower. In the instant case the allegation in both the original and amended declarations was that Mack Trucks was liable in negligence for plaintiff’s injuries — such liability being predicated on the installation of a defective spring bracket cap on the truck he was driving. That Mack Trucks was aware of the essential nature of plaintiff’s eause of action was amply manifested by its early-.'pursuit- of a third-party- 'complaint- against Arrow Aluminum Castings Company, the manufacturer of the defective .part. Since-the location of an accident .is-not an element of the. tort of negligence, and since :Md. -Rule 301 c provides that .a pleading1 is'.sufficient: if it “contains-a clear statement of. .the'facts necessary-...to constitute ':a- .cause of action . . and since .the méglige-nce alleged :was in ho way changed, we' hold that the amended declaration here did not set Out a new cause of action and’therefore'was not barred by limitations.. The amended ¡declaration did no more than correct what-was an-unfortunate but not fatal mistake in the original. '••■■■- ■ • ¡ •

The dissenting opinion in this casé regards the appéarance of similárity. between the original and amended declarations as “superficial’-’ ' and' “in reality fallacious.” 'These characterizations are based upon the truism that “[t]wo causes of action which one person may have against another do not become the same because they arise from events which happen on' the same day. . . .” Such a proposition is relevant only if we assume that the first declaration was based upon the Cecil County brake failure rather than upon the Harford County spring bracket cap failure. That any such assumption is unfounded may be seen by including in the chronology of the case two significant events omitted in the dissent: '

. In h-is, answer to Mack Trucks’ interrogation Webber stated, on March 29, 1973, that- his claim that Mack Trucks -.was negligent was based on\the breaking of the spring ..bracket cap.-This response obviously caused Mack Trucks to implead the .manufacturer of the spring bracket cap on January 9,1974.

' When these events are • included in. the chronology. it becomes- clear - that Webber’s ; first .declaration; however inartful, was-based upon the Harford County spring-bracket cap accident and that-Mack-Trucks had notice thereof. We agree- with the dissent that the cause'of action which accrued as a-result of the morning accident was a “poor one.” We do not, however, see how -the complete chronology of. the case permits the inference, made in the dissent, that the “morning” cause of■■ action was’asserted’in'the original declaration. We find that the present case falls ’ squarely within' the ambit of Zief; skpra,'-in that “the suit itself [was] a pending'suit wherein the’gravamen was the negligence of the defendant^’' To" paraphrase-the language of Mr'. .'Justice Holmes Iñ'Kimiéy, supra', 'Maéü?Trucks' had notice'frOW the beginning that Webber’s claim agai'nst it:was because of its conduct with'-respect to the'installation of a faulty spring bracket:cap--ahd therefore the-reasons for the statute of '•limitations’do ndt exist. :’ •

Defendant-appellant .relies. ohs Cline v. Fountain Rock, supra, for an explication "of "Maryland law concerning whether1 ór not an amendment sets out a new cause’ of action. Such : 1 reliance ’ is appropriate.1 See, Crowe v. Houseworth, supra; Hall v. Barlow, 260 Md. 327, 334, 272 A. 2d 386 (1971); Eastern Air Lines, Inc. v. Phoenix Savings and Loan Assoc., Inc., 239 Md. 195, 201, 210 A. 2d 515 (1965); Glens Falls Insurance Co. v. Baltimore County, Maryland, 230 Md. 524, 528, 187 A. 2d 875 (1963). Careful scrutiny of Chief 'Judgé Brune’s scholarly opinion'ih Cline, however, -does-not bear out áppella’nt’s contentions thát the instant amendment set out a ne\v cause of action. In that case the originar1 declaration asserted "an oral’ lease but the amendment ;assérted the lease and an oral joint venture agreement and was-therefore' held to have set out a new causé of action-. The Court refused to apply the'doctrine of relation back. ( ’ ;

The rule in Cline may be, found in the penultimate paragraph of the opinion. It is, simply put, that if evidence which would support the amended declaration would support the original, i.e., if judgment for plaintiff on the amended declaration would bar suit on, the .original, the amendment does not set outa new cause of action and is not subject to successful attack by way of limitations.

Post-CZine cases holding that a -new cause of action was not alleged- in an amended declaration include State v. Arundel Park Corp., supra and Doughty v. Prettyman, supra, each of which was discussed by the Court of Appeals in Crowe v. Houseworth, supra, decided in September, 1974. In Arundel Park an amendment was necessary in order to proceed in a death action for negligence against an otherwise immune eleemosynary institution. The defendants filed special pleas asserting their immunity from liability in tort. Plaintiff responded with an amended declaration, alleging that the defendants were insured and estopped by statute from pleading charitable immunity. The Court of Appeals found no new cause of action and no bar of limitations since “the theory of the action has always been and still is based upon negligence ... and the only change is in the allegation which, in effect anticipates a defense raised by the pleas of immunity.. . .” 218 Md. at 489. Again, in the instant case, the theory of the action has continuously been Mack Trucks' negligence. Plaintiffs amended declaration in no way changed this. The specific allegations of negligence were identical in each pleading.

Doughty, decided hi 1959, the same year as Arundel Park, was a negligence case in which the Virginia guest statute, then § 8-646.1 of the 1950 Code of Virginia, applied and required proof of gross negligence to permit'guest motor vehicle passengers to recover. The original declaration alleged negligence and the pertinent amendment alleged gross negligence with respect to a guest passenger. The Court of Appeals cited, inter alia, Arundel Park and Brooks v. Childress, supra, and distinguished Cline in its determination that the original and amended causes of action were essentially the same and that no plea of limitations could successfully be interposed. With respect to Cline, the Court stated:

“In the Cline case, the causes of action set up in the declaration and in the amended declaration were essentially different; as the Court pointed out, it could not be said that the evidence which would support the one would support the other or that a judgment in favor of Cline on one would preclude his suit on the other. See Comment in 18 Md. L. Rev. 161. In the present case, however, the alternative eauses of action set up in the two counts of the original declaration and in the third amended declaration are essentially the same. Evidence of the negligence of Johnson, the driver of the truck, would have supported the first count in its original or its amended form, and evidence that the truck was defective and that the appellee’s decedent knew or should have known of the defect would have supported the second count and all its variations.” 219 Md. at 91-92. (Emphasis added.)

Appellant also relies upon the case of Talbott v. Gegenheimer, 237 Md. 62, 205 A. 2d 285 (1964) which held that relation back will not be permitted when a new defendant is added. There, a passenger sued both drivers. After the lapse of three years, an amended declaration was filed wherein the identity of one of the drivers was changed — a wife was named as driver and her husband (one of the original defendants) was alleged to be the owner. A motion for summary judgment was granted as to the wife. The Court held that the motion was properly granted. Chief Judge Henderson, writing for the Court and without adverting to Cline, supra, pointed out that this was not a case of mere misnomer, citing Western Union v. State, 82 Md. 293, 33 A. 763 (1896), nor a change in the theory of liability against the same party, citing Doughty, Brooks and Zier, supra:

“. . . Mrs. Gegenheimer is obviously an entirely new party, who was not charged with liability on any theory in the first declaration. We think her plea of limitations is therefore good.” 237 Md. 63, 64.

We consider Talbott entirely inapposite, on its facts, to the instant case.⁹ We find that the amended declaration was not barred by limitations.

DENIAL .QFl APPELLANT’S, SECOND.. MOTION, , ", . 1 .FOR A; NEW; TRIAL. . V.V.. .'/•

It is>-funda-mentarth’at'tH'é';gránt';or'ref-usal‘df.a'new trial is within ¡ tHe: sounddiSGreti6ii'< of the ’trial eou'rfc • an'ch is’ not reversible1 ob appfeal;--af least1"when -the tri-aLcPu-rt fairly-exercised its- disbretióii," áhdyexc'épF-fcr5 -the • Most-'CG'mpelling reason'sh’Furtherffl'Ofei^.wKen’ thé'' motion ’ iá made '1 on- the grounds.'of '-newly-di’scofere2d'' évidénce,- that evidence -must not have been “previdüsliyrdísébvferáble' by due diligence.” Washington, Baltimore & Annapolis R. Co. v. Kimmey, 141 Md. 243, 118 A. 648 (1922); The Maryland Coal & Realty Company v. Eckhart , 25 Md. App. 605, 337 A. 2d 150 (1975); Angell v. Just, 22 Md. App. 43, 321 A. 2d 830 (1974).

, , M,ack.^fI^r,u,cLs:Tiled;:alI^Q-t¿ón.,f'or. a :néw[,^ria^L,within -the three:Mny,]aeriod .provided ;in. Rulé 567: The motjon- was-heard; in;.open: court,qn’K,ebruaryt25;. 1975. and-w.as denied;' On .the same date judgment absolute;...yy-aq enteredm.favpr-pf-Mr;. Webber- and, the; State .Accident.Fund: against Mack Trucks» I-nc.. in the, amount; of, $380,000. ,

.■0.niMareh-19; d;9.75 a second m.otion;,for;-a'new trial -was filed-..¹⁰ This motion¡wasi foa'sédiüpon aUegedmevylydiscoveredevidence pursuant' to -Maryland -Rule- 625.-b,> which, -provides as follows: • • - n-\. -• ,- ; .>

-'"“b.'NelólyDiscoJéredEvidence:

The court may, pursuant to a motion filed within the, time set forth in section a of this Rule, grant a .new trial or other appropriate relief on the ground of newly discovered evidence .which by due diligence could not have been, discovered in time to move for a new trial -under section a of Rule 567 (New Trial).” .

The motion claimed that in answers to interrogatories, in deposition, and at the trial of the case, Mr. Webber testified that he was (1) unable to engage in any but occasional light physical activity and (2) that except for unsuccessful efforts at light work, he' had not been employed 'since1 the accident on’February 26, 1970. The motion further represented to the1 court that “as a result of an anonymous call following the trial of- the case” appellant had come into possession of newly discovered evidence to show (a) that appellee was employed1 at H & H Auto Sales for a period of almost’a year from November 1973 to September 1974; and (b) that appellee had also been employed as a -vending machine repairman “for a period of a couple of months” for the Complete Coin Vending Corporation of Chesapeake, Maryland. Attached to the motion were affidavits of Bonny Ann Jackson, age 19, of Elkton, Maryland, who had dated Mr. Webber from November 1973 until February 1974; Sara Lee' Frederick,'age 26, a cousin of Bonny Ann Jackson, and a waitress'at Rose’s Diner, Route 40, Elkton; and Nellie Lee Meadows, age 51, of Elkton, Maryland, a former waitress at, Rose’s Diner. . :

A hearing on the motion was held on March 27, 1975 when the court Heard ten witnesses. The appellant called the three affiants and the presidents1 of each of the companies "by which appellee had allegedly been employed. The appellee’s witnesses, in addition to Webber himself, included a claims supervisor for Travelers Insurance Company who had been responsible for investigating Mr. Webber’s claim, and a private investigator whose firm had been engaged on behalf of appellant on or about February 1, 1975, after receipt of the anonymous telephone call. The number of pages of transcript exceeded that of the trial itself.

The charge with respect to alleged employment by the Complete Coin Vending Corporation of Chesapeake, Maryland was withdrawn when the testimony at the hearing on the motion developed only tha± the company rented appellee’s pickup truck for a short period of time for $50 per week' ending in November 1974 and that he had merely been seen at Rose’s Diner in the presence of vending machine company employees.

With respect to H & H Auto Sales the testimony of Fred Harry Letner, Sr., president of the organization, disclosed that it was a used car business and did very little mechanical work. During a 16-month period ending in April 1974, Mr. Webber, and on occasion Mrs. Webber, accompanied Mr. Letner to used car auctions at Felton, Delaware, Bordentown, New Jersey, Bel Air, Maryland, and Manheim, Pennsylvania on Tuesdays, Wednesdays, Thursdays and Fridays, respectively. They would drive passenger cars to or from these auctions. The compensation which Mr. Webber, and on occasion Mrs. Webber, received was $5 per trip. Letner testified that appellee was not an employee but rather, “contract labor.” The court found that the average compensation per month to Mr. Webber over the 16-month period was only $80. Mr. Webber testified that he had to stop this activity: “Because it was too hard on me. It was just too much to have to drive all of that ways now, for $5 and it was just too much on my back and legs and stuff. So that is really why I stopped. It was just too much on me.”

During the course of the hearing on the motion, Judge Mackey summoned the court reporter, Kathleen W. Martenis, and asked her to read, from her notes of the trial, Mr. Webber’s testimony concerning any employment after the accident. At the trial he first testified that upon the advice of one of his doctors he attempted to resume work as a truck driver but collapsed in the effort; and that he had pumped gas at a service station for about three weeks and had to give that up. He was then asked on direct examination whether he had tried any other job:

“Q. Now, have you tried any other job?

A. Yes, I tried working at a car lot.

Q. Doing what?

A. Car salesman, handyman, go to sales and drive cars back and forth and stuff like that and it just, I just can’t do it, because when you’re in pain you can’t perform to your fullest ability and the man’s not going to hire, he’s not going to hire me. And I only worked a couple days a week. He ain’t going to do that.” (Emphasis added.)

Q. Were you on commission there at the used car lot?

A. Yeah, $25.00 a car is what I got.

Q. Well, can you tell the Jury, were you able to make anything there?

A. Yeah, I made about $50.00 a week. I managed to sell a couple cars. Not $50.00 every week. Some weeks I didn’t take home nothing.”

Cross-examination of Mr. Webber on this subject was confined to testimony given by him in a deposition taken on May 30,1974:

“Q. And you indicated also when we asked you about what you did with your time, you said sometimes you drive up to one of the filling stations and sit around and talk to your friends up there?

A. Yes, and the car lot. I was going up once in a while and going with them to the car sales.

Q. But you do drive the car and you have all along?

A. Oh, yes.” (Emphasis supplied.)

At the hearing on the second motion for a new trial Mr. Webber was again cross-examined on the basis of his deposition. Thus, counsel for Mack Trucks, Inc. stated:

“Q. ... I am going to read the deposition and ask you whether I asked you these questions and answers as given in May of 74.

‘And how longD-i— line-4 ‘How. long-did‘you work at the car lot? A. Couple of weeks. And’then wha,t” What was,.tiie;riext time;? Answer: I haven’t worked. -.Question;’- Ha-sn’f bepn,v,.a -.next: Answqr:,: No.; Question;-,-You tell--;me.-since accident, ftedyme,;if;Lam wrong, yo.u .went back to work aft'qr the first;.o.peration, ,1,. 2-}/z,days,: and then,another time, you,-worked for abóut t-wo-wejeks, on a car lot? Answpn.Abopt.g or ,3; weeks, yes, that is .it. You haven't worked for. anybody else since this accident? Answer:' No. Yes, sir/Is that-correct? Answer: That is right’. • .

Did - -the stenographer accurately record ’ the questions arid 'answers I háve just read when you came to my office on May of ’74? Those aré the' ansv/érsyou'gav’e?- •=■ »¡ c '■ • .•■-■

A: Yés/sir/

Q. Is that correct?

-'A.'Yes, sir.”

In his oral opinion from the bench on the* day !bf the hearing on the motion for a new trial Judge Mackey found with respect to'Mr. Webber’s trial testimony: ' " ,

,[H]e..stated, he,worked, .two,.days,, a week and that'he.made $25 a trip or $50-a wepk¡ Thi^. was not. so every, week,, but it would probably, be, a fair average, as, T understood .the testimony. /The Plaintiff at £Ke. trial before the Jury, did not pyi any limit on the number of weeks' that he worked, nor the time that he worked. And he significantly, ' so far as we are ablé''tó"ascertain from our collective recall and the stenographer looking at the notes, he was not 'crossed oh this point.” (Emphasis plied.') • ‘ ' "’/'/'■''

It is apparent that when appellee was deposed his testimony-was somewhát cryptic in'describing his activities with ■ H'& H Auto-Sale's."’Wé reject; as in effect did the trial court, appellant’s hyperbolic charge in its brief that his was “th'e'ñtóát blatant 'perjured testimony'that the ipind of man could inveht.” It is, in' any event, his testimony at trial that really counted and we quite agree with .Judge' Mackey’s statement above quoted that at trial Mr.' Webber was “significantly” not cross:examined. In this respect we find qdite cogent the following analysis by the trial court in his opinion after the hearing on the motion:

“The question, it seems to the Gqurt, is first of all whether due- diligence was exercised and, if it were, could this matter of his earnings of some- $80 a month over a 16 month period have been discovered. It seems to the Court that in .light o.f the testimony of the Plaintiff at the trial, if it were not discoverable before, that a cross examination would have elicited answers as to the length of time that he worked, and had those answers proven false, the Movant then might have á different standingbefore the Court today on its Motion for New Trial. This cross examination was not conducted. The answers were not elicited, and it can not be said that the fact-finder was misled by the testimony of the Plaintiff, that he worked 2 days a week, making $25 to $50 a week. He simply did not say how long he worked. He did say that the time came that he had to quit and it does seem to the Court that it was up to the Defense Counsel to develop the length of time that he worked, if he is going to have standing here today to contend that with due diligence he could not have discovered this fact. It is futile to.try to speculate what the Plaintiff’s answer would have been had he been asked these questions.

The Court, therefore, concludes that the Jury was not misled and that the ingredients were there for a total revelation to the Jury, had the Defendant chosen to avail himself of his opportunity.”

We observe also that the trial court’s opinion finds as a fact “that no investigation was made of this case until November, 1974 or some 60 days before trial. ... It was November, 1974 that the insurer undertook an investigation other than the perfunctory examination of the police report and reading of the suit papers.” (The declaration was filed on January 22,1973.)

This finding is fully supported in the testimony adduced by appellee at the hearing on the motion. Richard Bannister, the Travelers Insurance Company’s claim supervisor, ultimately conceded that “we did not check with the employers prior to the verdict” and that after the verdict the insurance company employed Interstate Bureau of Investigation, a private investigating firm, to do so. Earlier, Bannister testified that during the period prior to the ruling by the court that the statute of limitations could- not be interposed,

“Well, now we went through the basic gathering of all the special damages and everything else to find out exactly what we were faced with, and then as far as a further investigation and as for an actual field work, there really was no field work until November of — approximately November of ’74.”'

Mr. Bannister’s testimony also revealed that in ■November, 1974 the company had employed a different investigating organization, the Wackenhut Corporation. The following colloquy ensued:

“Q. Now, did you give him any instructions as to what he was supposed to do?

A. We just wanted to make sure that Mr. Webber wasn’t working because we had, in May of '74, went into the deposition — I forget exactly when I received the deposition — but I received Mr. Lerch’s report of the deposition. But the deposition was in May and sometime shortly thereafter we learned that he, Mr. Webber, wasn’t working. This case was, as you know, a very complicated case with a lot of other ramifications in it in addition to the injuries that are alleged. We thought that it would be a good idea, we thought, to see if Mr. Webber was telling us the truth. We had no reason to doubt him.

Q. All right. Wait a minute. You had Answers to Interrogatories and you had his deposition. But you had already had that in the file. You had his deposition testimony and his Answers to Interrogatories?

A. With no reason to believe that he wasn’t telling us the truth.

Q. With no reason to believe that he wasn’t telling you the truth, so why did you do an investigation?

A. Because of the extent of the claim.

Q. You wanted to be sure what he was telling you was the truth. Right?

A. Yes.

Q. And it was good claim procedure not to rely on what a plaintiff tells you, but to go out and check out the bona fideness of what he said?

A. I would have to say that is probably correet.

Q. And in the course of your duties as a supervisor and your training, you certainly are instructed, are you not, that in any kind of a substantial case you always verify claimed loss of employment or claimed injuries?

A. Yes.”

Based upon this record, the ultimate conclusion of the trial court was that due diligence had not been exercised either prior to trial or during the trial itself and that the motion for a new trial must fail. We find no error in this conclusion nor can we accede to the importunities of appellant that the decided cases of the Court of Appeals and of this Court, including Angell v. Just, supra, compel a contrary result.

Furthermore1,■' another; Constituent; element ore the ¡question of newly pr-'áfter 'dlsc'ovéfredi eyjderice.-isithat-ifcmust-.b.e' such, and of such nature that, on a new trial, the n'ewly-'disetívered evidence ¡-would ¡produce .a¡different result./ Angell v. Just, supra, 22 Md. App. (g-b p. Hpre,'¡the.,tria,Lepurt;was not persuadéd;that; the, “Movánt. [appellantl.hasuhó'wnithat the Plaintiff-['appellee] is-changeable, with.any misleading1'of the fact finder to the extent that the verdict; would': have been other.than that,;r¡enper.ed.;pr.:that the amount,.of damages would Have been other than that found by the jury/’.There is substantial support fpr this conclusion. ’ ! ’/■/' 't

The jury Ipnew thát. plaintiff was, capable of driving a car and that' he had gone to the car' auctions.'in/.Maryland, Pennsylvania, Delaware, ^nd, ,N.ew. Mersey. ‘‘¡there was testimony by plaintiff' on direct examination "that he had made'as'mucli ás $h(tpef week;ori':occasion ifrbhe'used car business. Dr. Reahl, Mack Trueká’ 'examining orthopedic surgeon, said in his report, “I don’t think he’s capable of doing' heayy'-work-. or being-'a.-. truck'driver but-I-;'do‘think he should bei/able :tp béi rehabilitated; to'some form of, light work.” Dr. Dippman; ap.pellefe’S'physician,--,characterized Dr. Reahl’s report as “optimistic.” In any event the jury returned its verdict with the awareness that the permanently injured ¡plaintiff- had the capacity to earn some limited income.- v..;- ,. '-. ;

We cohcludé'thát the tri,ahcdurt’s findings on the evidence were n'ot -“clearly, erroneous,”-¡Md;.Rule -. 1086, and. that the denial of-app'ellarit’s-.motion.fpr a new trial was'notrah-abuse of discretion. ■ •. i;; m a , \

Judgment affirmed; ''costs to be ¡; paid by.appellant. : ■■■ - . . //

1 . The State Accident Fund was also a party plaintiff, and is an appellant here, to recover benefits paid to Mr. Webber pursuant to the Workmen’s Compensation Laws of Maryland.

2 . It was stipulated at the outset of the trial that the admission of ■■negligence would, npt constitute a waiver of .appellant’s right to assert on appeal its defense o'f limitations.'

3 . In -op.e.i)ing -statement, counsel, for Mack Trucks .stated that'-."‘the ¡evidence.,will show;.that this is not.a nothing case;.it’s-a'sferipuS easel” He said that appellee “was seriously, injured” and also tojd the jury their, award “will be a substantial amount.”

4 . A demurrer to the strict liability count was sustained without leave to amend.

5 . It was also stated that at the initial interview by counsel with Mr. Webber after the accident, his recollection of the facts was “foggy and vague” and that a motor vehicle accident report thereafter requested by counsel stated that the accident occurred at the intersection of U.S. Route 40 and Maryland Route 272.

6 . A demurrer to a strict liability count was again sustained without leave to amend.

7 . On the day of trial the court granted a motion by Mack Trucks filed on January 7, 1975 to dismiss its third-party claim against Arrow Aluminum Castings Gompany.

8 . Under then existing law in Maryland, a servant who was injured by the negligence of a fellow-servant had no right of action against the common master “unless the latter had been guilty himself of negligence in selecting an incompetent fellow-servant who by his carelessness caused the injury; or in retaining him in service after his incompetency became known or ought to have been known by the master.” Id. at p. 39.

9 . Recent cases from other jurisdictions reflect determinations consistent with Maryland law and with our holding here: Material Handling Industries, Inc. v. Eaton Corp., 391 F. Supp. 977 (E.D. Va. 1975) (originally: attack-on validity of. territorial, restrictions ; and tying-.agreement; as amended:'conspiracy in. violation of the Sherman Act, 15 U.S,C.'§ 1; Pendrell v. Chatham College, 386 F. Supp. 341 (D. Pa. 1974) (briginally: wrongful discharge;; as amenáedi'defamatiqn.-and-.tf-esgassfo In re Poulous Estate, 229 N.W.2d 721 (Iowa, 1975) '(originállyfwill attacked on grounds of undue,influence and. lack, of testamentary capacity;,,as amended: will forged); Price v. J. C. Penney Co., 216 S.E.2d 154 (N.C. App. 1975) (Originally: -wrongful discharge; as amended: slander). In all of these’ cases: the change brought about by the amendment substantially changed the-, cause of action. In none of them could it be said that eVidéiice in support of the amended declaration would necessarily support the original suit. In the instant case the evidence concerning defendant’s negligence would have been .the same under either declaration. ,(No .evidence was, adduced- since defendant admitte.d liability.).. ... , , . , •

10 . .The appeal in. this.case was-taken from..the judgment-entered- on-February 25, Í975 and from the denial of the motion for a new trial.