text:
    HELEN M. BERNSTEIN et al. v. DEAN RAUM KAPNECK et al.
    [No. 1302,
    September Term, 1979.1

      Decided July 11, 1980.

    The cause was argued before Moyean, Moore and Liss, JJ.

      Morris Kletzkin, with whom were Gerald Herz and Friedlander, Misler, Friedlander, Sloan & Herz on the brief, for appellants.

      Thomas H. Talbott, with whom were Brault, Graham, Scott & Brault on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court.

Helen M. Bernstein, individually, and as mother of Irene Andrea Bernstein and Deborah Bernstein, infant plaintiffs, and Edwin S. Bernstein, stepfather of the infants, and husband of Helen M. Bernstein, are the appellants in this case. Mrs. Bernstein was the nominal plaintiff in a suit at law filed in the Circuit Court for Montgomery County in which it was alleged that the infant children sustained personal injuries arising out of the negligence of the defendants, Dean Raum Kapneck, Barbara Sue Sussman, Katherine Gray Munroe and Pat Munroe, the appellees herein.

On March 2, 1978, the parents of the minor children and defendant Sussman filed a settlement agreement with the lower court. By order dated March 2,1978, the court entered judgments in favor of the minors, Irene Andrea Bernstein and Deborah Bernstein against the defendant Barbara Sue Sussman in the amount of $7,500. and $750., respectively. On the same date Helen M. Bernstein, individually, and as mother and next friend, executed an indemnifying release which was as follows:

FOR THE SOLE CONSIDERATION of Seven Thousand Five Hundred and 00/100 ($7,500.00), the receipt and sufficiency whereof is hereby acknowledged, the undersigned, Helen M. Bernstein, individually and as parent and natural guardian of Irene Schulman [Bernstein], a minor, hereby releases and forever discharges Barbara Sue Sussman and Government Employees Insurance Company , their heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable for or who might claim to be liable, hereinafter called Releasees, none of whom admit liability but all expressly deny any liability, from any and all claims, demands, damages, actions causes of action, or suits of whatsoever kind or nature, and particularly on account of loss or damage to the property and on account of bodily injuries, known and unknown, and which have resulted or may in future develop, sustained by Irene Schulman [Bernstein], a minor, born on 3/25/70, or arising out of damage or loss direct or indirect sustained by the undersigned in consequence of an accident involving the automobile accident occurring on or about July 25, 1975, at or near Persimmon Tree Road at or near the intersection of Bradley Boulevard in Bethesda, Maryland
As further consideration for the payment of said sum, the undersigned hereby agrees to protect the said Releasees against any claim for damages, compensation or otherwise, on the part of said minor or any other party, growing out of or resulting from injury to said minor in connection with the above mentioned accident, and to reimburse or make good any loss or damage or costs that the said Releasees may have to pay if any litigation arises from said injuries; and the undersigned hereby waives any and all rights of exemption, both as to real and personal property, to which the undersigned may be entitled under the laws of this or any other state as against such claims for reimbursement or indemnity by the said Releasees.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 2nd day of March, 1978.
X Helen M. Bernstein (SEAL) Helen M. Bernstein, Individually and as Mother and Next Friend of Irene Schulman

On February 13, 1979, the appellants filed a petition for reconsideration, revision, declaratory and other relief with respect to the judgment rendered as to the minor, Irene Andrea Bernstein. An evidentiary hearing on the petition was held on July 9, 1979, after which the lower court took the matter under advisement.

On September 27, 1979, the petition for reconsideration, revision, declaratory and other relief was denied by order and opinion of the court. It is from that order that this appeal was filed.

Appellant states the issues to be decided by this appeal as follows:

I. Does the revisory power of a court in a case of "mistake” under Maryland Rule 625 a include the power to set aside a release and settlement agreement on the ground of mutual mistake?
II. Does the law of the State of Maryland allow a release and settlement agreement entered into on behalf of a minor to be set aside on the ground of mutual mistake where the parties did not intend to settle with respect to unknown injuries?

On July 25, 1975, the minor children were passengers in a motor vehicle which was involved in an accident in Montgomery County. A settlement agreement among the parties was reached on March 2, 1978, and on that date counsel and appellant, Helen M. Bernstein, appeared before the Hon. John F. McAuliffe to seek approval of the settlement made on behalf of the minor children. After reviewing the medical reports furnished by counsel and discussing the case with the mother and her attorney, the judge entered a written order, approved the settlement and entered judgments as agreed among the parties. On March 6, 1978, plaintiffs’ counsel filed a praecipe entering all judgments paid and satisfied and also filed praecipe marking all remaining claims of the plaintiffs in the case as against all defendants settled and dismissed with prejudice. The indemnifying release was executed by Mrs. Bernstein on March 2, 1978.

More than eleven months later, Helen M. Bernstein, individually and on behalf of Irene Andrea Schulman [Bernstein] filed with Edwin S. Bernstein, stepfather of the children, the petition which is the subject matter of this appeal. By that petition she sought to set aside the settlement release and judgments entered on March 2,1978 on the ground that the release was entered into, executed and delivered as a result of a mutual mistake of fact.

Judge McAuliffe, in an excellent synopsis of the facts as they were known to the parties and to the trial judge at the time of settlement and the entry of the judgments, stated the factual summary as follows:

1. Irene was riding as an unbelted passenger in the rear seat of a motor vehicle when a collision caused her to be thrown against the rear portion of the seat in front of her, causing the following apparent injuries:
a. Severe laceration of the face, described by the treating doctor as an "extensive, deep, irregular laceration of the forehead which extended from the glabella area down across the nose with exposure of the nasal bones and the cartilaginous framework of the nose.”
b. Chip fracture of the nasal bones.
c. Non-displaced fracture of the scapula (right shoulder).
d. Moderately severe traumatic neurosis.
2. Irene was five years of age at the time of the accident.
The laceration was surgically repaired under local anesthesia by a plastic surgeon, who at the same time repaired the chip fracture of the nasal bones. By his report of September 13, 1976, the plastic surgeon indicated the probable need for later revision of the scar, and stated there would result some permanent scarring notwithstanding the revision. Anticipated surgical costs for revision were $300 to $400, with a period of hospitalization of one to two days for each procedure (revision and/or dermabrasion).
The non-displaced fracture of the right scapula was treated with a simple sling, and healed completely with no residuals.
Irene was also seen by the chief of the Ophthalmology Service of Georgetown University Hospital five days after the accident, because her mother had noted the eyes crossing for one or two days after the lids were swollen. The ophthalmologist reported no ocular involvement.
The most significant concern of the mother and stepfather following resolution of the immediate observable physical defects caused by the accident involved emotional sequelae. As a result of this concern, Irene was seen for psychiatric evaluation by Dr. Joel Ganz in or about January of 1977. Dr. Ganz was of the opinion that Irene (and her sister) were in need of therapy, and that the automobile accident was a direct causative factor, superimposed upon pre-existing conditions. The projected cost for therapy for both children and both parents (in the opinion of Dr. Ganz) was some $9,360 per year, for about two years. Irene was next seen by Dr. Sidney Berman, who reported on March 28, 1977 that he had made "a psychiatric and neurological diagnostic study ...” of Irene. He felt Irene then suffered from a moderately severe traumatic neurosis due to "a severe injury she received as a result of an automobile accident in July of 1975.” He recommended psychotherapy over a period of six to twelve months. In his report of December 14, 1977 to the attorney then representing the plaintiffs, Dr. Berman provided some additional details of the manifestations of this diagnosed neurosis, and estimated the probable cost of necessary psychotherapy to be $4,000 to $5,300, plus transportation.

At the hearing on plaintiffs’ motion to vacate the judgment and to invalidate the release, additional uncontradicted evidence was offered which established that:

Irene also suffered physical damage to the brain as a result of this accident, resulting in post-traumatic seizure disorder. This diagnosis was made as a result of an electroencephalogram performed on or about October 4, 1978, and additional history elicited by Dr. Stanley Cohan from the mother and stepfather, and of course from physical and neurological testing. According to the testimony of Dr. Cohan, it was within reasonable medical probability that an electroencephalogram taken immediately after the accident would have disclosed some abnormality as a result of this injury, and an electroencephalogram taken at any time after six months following the accident would have probably demonstrated, spiking, and would otherwise have been indicative of the serious nature of the brain injury. Dr. Cohan was of the opinion that he will probably be able to control Irene’s seizure disorder, but she will undoubtedly be under the care of physicians for her seizures for the rest of her life. In addition, he stated that her impairment in reading and eye-hand coordination, as well as the social embarrassment caused by motor incoordination are likely to be lifelong problems, and that additional expenses will be required for special education.

Plaintiffs contended below and here contend that all parties including the judge were unaware that Irene had suffered brain damage as a result of the accident and that the parties, therefore, acted upon a material and mutual mistake of fact which requires that the plaintiff be granted the relief prayed. The trial judge found clear and convincing proof that Irene had in fact suffered the brain damage complained of and that the damage existed at the time of the settlement and judgment. He further found, as a fact, that Irene’s mother and stepfather had exercised reasonable diligence in attempting to ascertain the full nature and extent of Irene’s injuries prior to entering into the settlement, and that the amount of the settlement would not have been found to be reasonable by the parties or the court if the additional element of a serious brain injury had been known.

In spite of these findings, the trial judge did not find the existence of a mutual mistake of fact sufficient to justify the judicial rescission of the contract of release in this case.

We find this case in a somewhat confusing posture. Appellants filed their petition originally at law in an effort to have the court exercise its revisory power under Maryland Rule 625 a which was the sole authority cited to support appellants’ position at that point. At some juncture in the proceedings, the character of the case changed to an equitable proceeding in which the appellants sought the rescission of the contract of release on the equitable ground of mutual mistake. Although the case was not transferred to equity, it was argued on equitable grounds before the lower court without objection by either side and was briefed and argued before us by both parties on the same basis. The lower court decided the case based on Rule 625 a and the equitable claim for rescission. We shall follow suit.

I.

It must be emphasized that the judgment here involved was enrolled at the expiration of thirty days from its original entry on March 2,1978. Appellants concede that they did not begin their proceeding to set aside the judgment until long after that thirty day period had elapsed. They urge, however, that under statutory law as codified in the Annotated Code of Maryland, Courts and Judicial Proceedings Article, Sec. 6-408 (1974,1979 Cum. Supp.), and Rule 625 a, the court has revisory power and control over the judgment beyond the thirty day period in the event of fraud, mistake, or irregularity. The language is the same in the rule and the statute except that the statute adds the language "or failure of an employee of the court or the clerk’s office to perform a duty required by statute or rule.” That additional language has no relevance to the case at bar.

Appellant concedes that in the reported cases from the Court of Appeals and this Court the meaning of "mistake” as used in Rule 625 a has not been clearly defined. However, it is clear to us that in those cases permitting a judgment to be set aside on the basis of "mistake,” the mistake must necessarily be confined to those instances where there is a jurisdictional mistake involved.

In Hughes v. Beltway Homes, Inc., 276 Md. 382, 347 A.2d 837 (1975), the Court of Appeals interpreted "mistake” as follows:

The type of situation in which mistake might be applicable is demonstrated by Miles v. Hamilton, 269 Md. 708, 309 A.2d 631 (1973) (no valid service of process) and Ashe v. Spears, 263 Md. 622, 284 A.2d 207 (1971), cert. denied, 406 U.S. 958 (1972), (a contention of no valid service of process). It is further demonstrated by two cases arising before adoption of Rule 625, Harvey v. Slacum, 181 Md. 206, 210-11; 29 A.2d 276 (1942), (default judgment entered where there has been no valid service of process), and May v. Wolvington, 69 Md. 117, 14 A. 706 (1888), (judgment by default entered for lack of a plea when appropriate pleadings had in fact been filed). [276 Md. at 387.]

The Court indicated that these jurisdictional mistakes could justify the utilization of the Court’s revisory power over an enrolled judgment. The Court also noted that it had in various opinions seemed to have equated the term "mistake” with "irregularity.” However, it cited a number of cases to which the term mistake was not applicable to an enrolled judgment where there had been an effort to strike. The Court stated that Rule 625 was:

not applicable to an enrolled decree in a mechanics’ lien foreclosure case, making reference to the wrong lot, Brunecz v. DiLeo, 263 Md. 481, 483, 283 A.2d 606 (1971); to a mistaken belief of out-of-state counsel the Maryland procedure relative to attachment was similar to that in his state, which brought about a judgment by default, Penn Central Co. v. Buffalo Spring, 260 Md. 576, 581,273 A.2d 97 (1971); to the negligence or mistake of the agents and counsel of a complaining party, Wooddy v. Wooddy, 256 Md. 440, 453, 261 A.2d 486 (1970); to failure to attach a ledger card to an affidavit with a motion for summary judgment or the failure of counsel to file an appropriate pleading prior to the expiration of the time specified by rule, Household Fin. Corp. v. Taylor, 254 Md. 349, 356, 254 A.2d 687 (1969); to a finding that a judgment by default was based upon vouchers, some of which were in the name of the defendant, some in the name of a corporation, and some in the name of another person, Berwyn Fuel & Feed Co. v. Kolb, 249 Md. 475, 478-79, 240 A.2d 239 (1968); to a mistaken determination that summary judgment should be entered against a defendant, Rhodes Co. v. Blue Ridge Co., 218 Md. 329, 331, 146 A.2d 771 (1958); or to a failure by parties defendant to inform their attorneys of the defenses that they had, Thomas v. Hopkins, 209 Md. 321, 326-27, 121 A.2d 192 (1956). [276 Md. at 386-87.]

Appellants urge that Rule 625 a applies here because there was a mutual mistake as to the nature of the minor’s injuries. We do not agree. We find no mistake as contemplated under Rule 625 a which would justify striking the enrolled judgment.

II.

Appellants urge we find that the trial court erred in its refusal to declare the release and settlement agreement executed by the parties to be null and void. They contend that the parties to the release as well as the trial court were mutually mistaken as to the physical, medical and neurological condition of the minor at the time the release and agreement were executed and approved.

The law is clear that a compromise agreement or release is a contract and is governed by the law of contracts. 15A Am. Jur. 2d Compromise and Settlement Sec. 7 (1976); 66 Am. Jur. 2d Release Sec. 1 (1973); Mangini v. McClurg, 24 N.Y.S.2d 556, 249 N.E.2d 386 (1969). It is equally clear that "a contract may be voided on the ground of mutual mistake of fact where the mistake is common to both parties and by reason of it each has done what neither intended.” 17 Am. Jur. 2d Contracts Sec. 143 (1964). In order for a mistake of fact to affect the legal effect of a compromise agreement, "it must be such that it animated and controlled the conduct of the party.” 54 Am. Jur. 2d Mistake, Accident or Surprise Sec. 5 (1971).

We note that a distinction must be made initially between a mutual mistake as to the existence of an unknown injury and a mistake as to the unknown consequences of a known injury. As to a settlement and compromise of the latter the parties are said to have assumed the risk regarding any uncertainties as to these known injuries. In this situation, the existence of the known injuries are consciously considered by both parties in reaching their compromise agreement. Thus, where recovery takes longer than expected no "mistake” is present sufficient to invalidate the agreement. When, however, the injury was unknown to the parties but is discovered to have existed at the time of settlement, the injury cannot be said to have been taken into account by the parties in reaching their compromise agreement as only the injuries then known to the parties would have been considered. In such a case where the parties are mutually mistaken as to a fact material to the agreement, they cannot be said to have assumed the risk of their being mistaken with regard to the consequences of an injury of which they had no knowledge. 15A Am. Jur. 2d Compromise and Settlement Sec. 33 (1976). See Grand Trunk Western R. Co. v. Lahiff, 218 Wis. 457, 261 N.W. 11 (1935).

Another requisite for the avoidance of a release premised on mutual mistake is clear and convincing proof that the party seeking to set aside the compromise agreement has exercised reasonable diligence in attempting to ascertain the extent of the injuries prior to entering into the settlement. The facts of this case show that more than two years elapsed from the date of the accident until suit was filed; that the settlement agreement was not entered into until nearly three years after the accident; that the minor child was seen or treated by a plastic surgeon, an ophthalmologist, a radiologist, an orthopedic surgeon, two psychological testing services and two psychiatrists, none of whom found any evidence of brain damage. It was on the basis of these facts that the trial judge found that the parents of the minor child exercised reasonable diligence in ascertaining the full nature and extent of the child’s injuries before entering into the settlement. The trial court, in the case at bar, summarized the injuries to the minor child known to the parties at the time of the execution of the release; however, the brain injury resulting in traumatic epilepsy was not included in those known injuries. The trial court further found that there was clear and convincing evidence that the seizure disorder existed at the time of settlement and was the result of the accident. The trial judge refused, however, to consider whether the seizure disorder suffered by the child was an unknown injury or the unknown consequence of a known injury.

The trial court was correct in its conclusion that there are no Maryland decisions directly apposite to the present case. We also think the court was correct in its conclusion that the majority of jurisdictions that have considered the avoidance of a release under similar circumstances would have afforded the appellants the relief requested.

In Ricketts v. Pennsylvania R. Co., 153 F.2d 757, 767 (2d Cir. 1946), in a special concurring opinion, Judge Frank said: "In all likelihood, it is because the courts have sensed the differentiated character of releases of personal injury claims that the 'modern trend,’ as Wigmore describes it, 'is to * * * develop a special doctrine * * * for that class of cases, liberally relieving the party who signed the release.” Wigmore, Evidence, Sec. 2416. See also Clancy v. Pacenti, 15 Ill. App. 2d 171, 145 N.E.2d 802, 805 (1957).

In LeFrancois v. Hobart College, 31 N.Y.S.2d 200, 39 N.E.2d 271 (1941), the injury known to have been sustained by the plaintiff was found by the court to have been a brain concussion. Settlement was made after the symptoms of the concussion had subsided. Subsequently, it was discovered the plaintiff had sustained a brain injury so severe that he developed permanent paralysis of his right side. In response to the contention by the defendant that the plaintiff, having suffered a concussion, must necessarily have known he suffered a brain injury, the court said that:

The two terms are not entirely synonymous as a matter of practical application, especially from the point of view of a layman .... [T]he question here is whether the plaintiff, a layman, knew about his injury, and not what the opinion of highly specialized physicians may have been. The Courts should attempt to solve pragmatically problems of this character. [31 N.Y.S.2d at 203-04.]

In Hall v. Strom Construction Co., 368 Mich. 253, 118 N.W.2d 281 (1962), a case in which the injury was identical to the case at bar, the court said:

To make the rule pinpoint plain, we construe it as applicable where the releasor’s proof persuasively shows a fair and mutual want of knowledge of a hidden injury which eventually comes to light, distinguished from a then want of knowledge of unexpected adverse consequences of a known yet apparently negligible injury. Here, by all fair intendment, [plaintiff] and [defendant’s insurer] knew that [plaintiff] had been struck injuriously on the head and back. They did not know of the simultaneous internal injury, that is, the brain injury which upon present assumption was serious enough to cause the epileptic seizures [plaintiff] experienced later. The rule [allowing avoidance of a release where an injury was mutually unknown at time of release] therefore applies. [118 N.W.2d at 284.]

Appellees contend the language of the release is clear and unambiguous and is controlling in this case. They cite Thomas v. Erie Ins. Exchange, 229 Md. 332, 340, 182 A.2d 823 (1962), in which the Court of Appeals construed a release similar to the release in this case. In Thomas, the claimant contended that while she signed a release of all claims, her intention was to release only her claim under the liability section of an insurance policy and not her claims under the medical payments section. No reservation was made in the release agreement preserving her claim under the medical payment section of the policy. The Court stated: "We hold that the release here involved was plain, unambiguous and by its broad terms barred all subsequent claims theretofore existing between the contracting parties ....”

Maryland has adopted the objective test for the interpretation of contracts. In Board of Trustees of State Colleges v. Sherman, 280 Md. 373, 380, 373 A.2d 626 (1977), the test was explicated as follows:

[T]he clear and unambiguous language of an agreement will not give way to what the parties thought the agreement meant or intended to mean; where a contract is plain and unambiguous, there is no room for construction, and it must be presumed that the parties meant what they expressed; and when the language of a contract is clear, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.

Again, in Ray v. Eurice, 201 Md. 115, 93 A.2d 272 (1952), the Court of Appeals said: "Finally, where there has been an integration of an agreement, those who execute it will not be allowed to place their own interpretation on what it means or was intended to mean. The test in such case is objective and not subjective.” Also see Pemrock, Inc. v. Essco Co., 252 Md. 374, 249 A.2d 711 (1969); Class v. Doctor’s Hospital, Inc., 213 Md. 44, 131 A.2d 254 (1957).

In 13 Williston, Contracts, Sec. 1551 at 196, the author deals specifically with the majority view which approves the setting aside of releases for essentially subjective reasons and those jurisdictions which adhere to the objective test rule. He states:

Of course, when parties settle for unknown injuries received in an accident, the release obtained is incontestable. But the cases where they deliberately undertake so to do must be rare.
But even with this growing liberal trend in setting aside releases for essentially subjective reasons, and there are often cogent and compelling reasons for so doing, a substantial number of Courts adhere to the orthodox objective rule that absent mutual mistake, fraud, deceit or duress an unambiguous, all-inclusive, totally embracive release must be given effect as written.

Williston further states, in citing Pemrock, Inc. v. Essco Co., supra, that:

The Court must construe an instrument according to its plain meaning and legal effect and will not be diverted from this course by self-serving declarations of the interested parties that conflict with the object and clear meaning of the document. The proviso that the instrument in question is not a release and that the right to recover for the same injury against the wrongdoer remains unimpaired are nugatory because repugnant to the primary meaning and legal effect and operation of the instrument itself. [Id. at 198.]

Williston also refers to Emery v. Mackiewicz, 429 Pa. 322, 240 A.2d 68 (1968), in which a release similar to the release in this case was discussed by the court:

If such a release can be nullified or circumvented, then every written release and every written contract or agreement of any kind, no matter how clear and pertinent and all-inclusive can be set aside whenever one of the parties has a change of mind or whenever there subsequently occurs a change of circumstances which are unforeseen or there were after-discovered injuries or the magnitude of the releasor’s injuries are unexpectedly increased, or plaintiff made an inadequate settlement. It would make a mockery of the English language and of the Law to permit this release to be circumvented or held to be nugatory. [240 A.2d at 70.]

Appellants asseverate that the language of the release in this case does not vitiate the mutual mistake which was sufficient to permit a showing of a lack of intent to settle for unknown injuries. They base their assertion on a number of cases which have so held including Mangini v. McClurg, supra, where it is stated:

... [A] realistic recognition that releases contain standardized, even ritualistic, language and are given in circumstances where the parties are sometimes looking no further than the precise matter in dispute that is being settled. [T]he literal language should not be determinative of the ultimate result or be applied mechanically. [249 N.E.2d at 389-90.]

In Aronovitch v. Levy, 238 Minn. 237, 56 N.W.2d 570, 576 (1953), the Supreme Court of Minnesota stated:

We perceive the rule in this state to be that, where the parties contract for a release of all claims for known injuries, the release is a bar to recovery for unknown consequences of known injuries but is not a bar to recovery for unknown injuries not within the contemplation of the parties at the time of contracting for such release. Further that, even though a release expressly covers unknown injuries, it is not a bar to an action for such unknown injuries if it can be shown that such unknown injuries were not within the contemplation of the parties when the settlement was agreed upon, but that, if the parties did in fact intentionally agree upon a settlement for unknown injuries, such release will be binding. Whether the parties intended the release to cover unknown injuries is usually a question of fact.

The Appellate Court of Illinois said in Florkiewicz v. Gonzalez, 38 Ill. App. 3d 115, 347 N.E.2d 401, 405 (1976):

The courts in Illinois have refused to permit any form of words, no matter how all-encompassing, to foreclose scrutiny of a release and the attendant circumstances to be sure that it was fairly made and accurately reflected the intentions of the parties. [Citation omitted.] The trend is to set aside releases of personal injury claims in a situation where the facts, when finally known, present an unconscionable result.

Appellants urge this Court to adopt the majority rule and to hold that the trial court erred in refusing to rescind the release and settlement agreement between the parties on the ground of mutual mistake. Appellees just as vigorously suggest that the prior decisions in this State clearly indicate that Maryland has followed and would continue to follow the minority objective rule requiring that in the absence of proof of fraud an unambiguous release must be given effect as written.

This is a matter of first impression in Maryland so far as we have been able to determine, and we have stated the issue rather fully. However, because of the posture of this case, we find ourselves unable to decide the issue as raised.

We conclude we must distinguish between the cases cited by the appellant and the case at bar. So far as we have been able to determine, none of the cases which have been cited by appellant in support of the subjective majority rule as to the rescission of a release have involved an enrolled judgment. As we perceive the status of this case, even if, arguendo, we adopted the appellant’s position, the most we could do would be to rescind the release and settlement agreement. We would still be left with a judgment which was enrolled for eleven months before this proceeding began. That judgment was entered, settled and satisfied, and the consideration paid and for all intents and purposes the case was finally closed almost a year before appellants filed their action. As we have held that the trial court had no power to strike the enrolled judgment under Rule 625 a, the remaining contentions of the parties are moot and their resolution must await another day.

Judgment affirmed.

Costs to be paid by appellants.

      . It should be noted that equity, from its inception, has had jurisdiction to concern itself with mistakes. 3 Pomeroy, Equity Jurisprudence, Sec. 838. In addition, the equitable remedy of cancellation or rescission of contracts and other instruments has long been available as a method of granting relief from the consequences of any mistake of fact which is a material element of the transaction. See Restatement, Contracts, Sec. 502; Restatement, Torts, Sec. 900. Further, the spirit of equity is given great emphasis in the application of the rule that a release may be avoided where it can be shown that there was a mutual mistake. See Sloan v. Standard Oil Co., 177 Oh. St. 149, 203 N.E.2d 237 (1964).


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    RONALD HARRISON REEMSNYDER v. STATE OF MARYLAND
    [No. 1308,
    September Term, 1979.]

      Decided July 11, 1980.

    The cause was argued before Thompson, Melvin and Wilner, JJ.

      Edward P. Camus for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Stephen B. Caplis, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Barry Hamilton, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

This case concerns the question of double jeopardy after a mistrial has been declared over the objections of an accused. Ronald Harrison Reemsnyder, appellant, and a co-defendant, Clyde Brewer, were charged with first degree sexual offenses and related offenses. After a nine-day trial in the Circuit Court for Montgomery County (William B. Cave, J.), the case was submitted to the jury at 1:22 p.m. August 10, 1979. At 10:25 p.m. the court reconvened without the jury and the following occurred:

"The Court: I guess the record ought to reflect the sequence of events that have transpired: Juror, Elmer Jones, complained of either pains or breathing difficulties, some discomfort. The rescue squad, having been called, Mr. Jones was transported to Suburban Hospital.
The Court has, five minutes ago, contacted the emergency room and has been informed that Mr. Jones has been admitted into the coronary care unit for observation but has been admitted into the hospital and has, therefore, become unavailable to continue as a juror in the deliberation in this matter.”
"Mr. State.
Mr. Hamilton: Your Honor, at this time, the State would request that the Court order the suspension, continue, the suspension of the jury’s deliberation and adjourn these proceedings until Monday morning.
It would request that the jury be reassembled Monday morning and that we then make a determination as to the availability or lack of Mr. Jones.”
"Mr. Camus: [Attorney for appellant] I don’t know why Monday is the key day. I recognize that the juror took ill and the other eleven members have been instructed by the Court not to deliberate. I have always found and felt that once jurors are exposed again from the sanctity of the jury room to normal day problems of life that they discuss what has been happening and are influenced in some way by extraneous matters other than deliberations.
However, I realize that the Court is in a position to decide what is best. I would like us to continue, if the Court feels that is warranted, on a day by day basis. Just taking two days, eleven jurors separated from what has gone on now from roughly 2:30 — it is now 10:30 — except for the dinner hour, and then after seven hours of obviously heated deliberations, coldly separate them for two days, I don’t think would result in any justice to Mr. Reemsnyder.
So, I think the State’s suggestion of just coming back Monday without any medical reason, I think we ought to, on a daily basis respond and have a report in reference to that juror, and then knowing what the facts are, can take a position as I see fit at that time.
The Court: Well, it is clear that the juror is unavailable at least until Monday, and no indication that the diagnosis or prognosis may be then or thereafter.
Mr. Camus: I would ask, therefore, if you are going to use Monday for the guideline that this jury be sequestered so that the outside influence, other than themselves, is totally minimized.”
"The Court: I would at least give some serious consideration to that if it were not for the fact that there is not any indication of a strong likelihood that Mr. Jones will be available Monday or indeed be available at all for further service on this jury panel.
Consequently, it would be, keeping in mind the paramount importance is the rights of the Defendants in this matter, and balancing those considerations, it would not appear to serve any useful purpose to sequester them on, at best, a slight possibility that he may some time in the future become available.
My contact with the emergency room, a Nurse Ridgeway, in response to my question is there a possibility that he would be available in the near future for furthér service on this jury, without stating any further reasons or what she bases it on, simply said, no.
It therefore appears to the Court that at this time we are down to eleven jurors. We no longer have the availability of the twelfth.
I really feel no alternative other than to declare, for the record, at this time, the loss of one juror, and, gentlemen, we now have a panel of eleven.
Mr. Hamilton: For the record then, pursuant to Maryland Rule 751 a, the State would consent to the cause continued to be deliberated by a panel of eleven jurors as to both Defendants.”
"Mr. Camus: On behalf of Mr. Reemsnyder we do not consent to eleven jurors.
The Court: All right. Then I inform Mr. Reemsnyder, since it is his constitutional choice, that the Court is faced with no alternative other than to either proceed with eleven by consent of the parties or declare a mistrial, and I am aware of the fact, the record will reflect, you have had an opportunity to discuss this fully with your client, Mr. Camus.
Mr. Camus: Yes, I have, Your Honor, and I would like to, if the Court decides, I would like, I will put it on the record now.
The Court: All right, sir.
Mr. Camus: I do not, in any way, on behalf of Mr. Reemsnyder, agree to the granting of a mistrial. I feel that under the Constitution he has put himself upon the country, that he has exposed himself to trial, and it has lasted two weeks basically, having started a week ago Tuesday; that the State has had its opportunity to prosecute him; that he elected to go with a jury trial of his peers; and that there i s no manifest necessity under the Constitution, would be exposing himself to double jeopardy, and in no way consents to the granting of a mistrial.”
"The Court: It is obvious with respect to Mr. Reemsnyder I find myself in the position of not having enough jurors to continue his trial and having the objection to the Court declaring a mistrial. I, therefore, am in a position I cannot go backwards nor forward nor stay where I am.”
The Court: Let me ask what is counsel’s position with respect to independent deliberation with respect to both Defendants?
Mr. Camus: Would you say that again?
The Court: What is counsel’s position with respect to independent deliberations with respect to each Defendant, that is, if the eleven remaining jurors were allowed to continue the deliberations only as to Mr. Brewer and allow them to recess with respect to Mr. Reemsnyder until we had a definite decision as to whether or not Mr. Jones would ever be available? ”
"(Whereupon, bench conference not reported.)
The Court: All right, gentlemen, it would appear then the only avenue open to the Court at this time is to request the jury to return Monday morning, at which time I will find out the availability of Mr. Jones.”

On Monday, August 13, 1979, the Court reconvened and the following transpired:

"Gentlemen, for the record I again called Suburban Hospital this morning and was informed Mr. Jones is still in the Coronary Unit. The only information that they would give me was that he was still there and that everyone in there was carried as critical but without giving me any precise diagnosis or prognosis. In any event, from that information and the indication I have late Friday evening it appears that with respect to this jury that Mr. Jones has become disabled and can no longer participate in the deliberations. Mr. Camus?
Mr. Camus: My move?
The Court: Your move, sir.
Mr. Camus: Your Honor, Mr. Reemsnyder has put himself on the country and has stood trial for almost two weeks now basically, two weeks tomorrow. He totally and completely,, as do I, object to any granting of a mistrial. He has placed himself in jeopardy and in weighing against the public interest and his rights, I think his rights are paramount at this point and he elects not to go, as we indicated Friday, with 11.
The Court: All right. Mr. Reemsnyder, of course, it is your election to proceed with the reduced panel of 11 and the corollary right not to proceed without the full 12. In the absence of the full 12 and in absence of a mutual consent to continue with the 11, then the Court would have no alternative other than to excuse the jury from its deliberations in your matter and declare unfortunately a mistrial.
Am I correct in my understanding that the representation of your counsel that it is your election not to proceed with less than the required 12 jurors?
Mr. Reemsnyder: Yes, I am going to follow my attorney’s advice.
The Court: I assume you have thoroughly discussed it with your attorney?
Mr. Reemsnyder: Yes, Your Honor.
The Court: All right. Then the Court sees no alternative other than to declare the mistrial since those are the only two available options, either to proceed with 11 or to declare a mistrial. Obviously we cannot do both, and the Court therefore insofar as the State of Maryland versus Ronald Reemsnyder declares a mistrial and the matter will be set for retrial.”

A motion to dismiss the indictment based upon double jeopardy was filed by the appellant. The present appeal is from the trial court’s denial of that motion.

The Law

The prohibition against double jeopardy precludes a retrial after a mistrial declaration unless there is "manifest necessity” for the mistrial, or unless the accused consents to a mistrial. Cornish v. State, 272 Md. 312, 322 A.2d 880 (1974). In United States v. Perez, 9 Wheat. 579, 6 L. Ed. 165 (1824), the Court set forth the test for declaring a mistrial based on manifest necessity. The Court stated:

"We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes, i . . But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.” Id. at 580.

The majority of cases have held that the illness of a juror justifies a discharge of the jury and declaring a mistrial. See, Oelke v. United States, 389 F.2d 668 (9th Cir. 1967), cert. denied, 390 U.S. 1029, 88 S. Ct. 1420, 20 L. Ed. 2d 286 (1968); United States v. Potash, 118 F.2d 54 (2d Cir.), cert. denied, 313 U.S. 584, 61 S. Ct. 1103, 85 L. Ed. 1540 (1941); United States v. Holland, 378 F. Supp. 144 (E.D. Pa.), aff'd sub nom Appeal of Ehly, 506 F.2d 1050 (3d Cir. 1974), cert. denied, 420 U.S. 994, 95 S. Ct. 1433, 43 L. Ed. 2d 676 (1975); People v. Upshaw, 13 Cal. 3d 29, 528 P.2d 756, 117 Cal. Rptr. 668 (1974); Finton v. State, 244 Ind. 396, 193 N.E.2d 134 (1963); State v. Kappen, 191 Io. 19, 180 N.W. 307 (1920); State v. Reed, 53 Kan. 767, 37 P. 174 (1894); Baker v. Commonwealth, 280 Ky. 165, 132 S.W.2d 766 (1939); State v. Miller, 331 Mo. 675, 56 S.W.2d 92 (1932); People v. Rial, 25 A.D.2d 28, 266 N.Y.S.2d 426 (1966); State v. Ledbetter, 4 N.C. App. 303, 167 S.E.2d 68 (1969); Commonwealth v. Kent, 355 Pa. 146, 49 A.2d 388 (1946); State v. Nelson, 19 R.I. 467,34 A. 990 (1896); State v. Emery, 59 Vt. 84, 7 A. 129 (1886). See also, Annot. 125 A.L.R. 694 (1940) and S. Schulhofer, Jeopardy and Mistrials, 125 U. Pa. L. Rev. 449 (1977).

Determination of whether manifest necessity exists is within the sound discretion of the trial judge, United States v. Perez, supra; Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978); United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); Cornish v. State, 272 Md. at 316.

Alternate Courses

Appellant argues the trial judge did not consider alternate courses as he is required to do. We do not see the situation that way. The Court of Appeals in Cornish v. State, supra at 370, stated:

"And a retrial is barred by the Fifth Amendment where reasonable alternatives to a mistrial, such as a continuance, are feasible and could cure the problem, United States v. Jorn, supra; United States v. Beasley, [479 F.2d 1124 (5th Cir. 1973), cert. denied 414 U.S. 924 (1973)]; United States v. Kin Ping Cheung, [485 F.2d 689 (5th Cir. 1973)]; United States v. Tinney, 473 F.2d 1085 (3d Cir. 1973), cert. denied 412 U.S. 928, 93 S. Ct. 2752, 37 L. Ed. 2d 156 (1973).”

We have quoted at length from the transcript to show that the trial judge did consider all viable alternatives. We do not think that the judge abused his discretion in refusing to accept the appellant’s suggestion that the remaining eleven jurors be sequestered and the case continued from day to day until further information was obtained as to the sick juror’s prognosis, particularly after the case had already been continued from Friday until Monday. It would appear to us that the record sufficiently indicated that the ability of the ill juror to return to his duties within a reasonable time was unlikely.

Hearsay Evidence

Appellant, relying primarily on Jourdan v. State, 275 Md. 495, 341 A.2d 388 (1975) and Carey v. State, 30 Md. App. 594, 353 A.2d 650 (1976), argues that the hearsay statements in the instant case were insufficient to support factual findings of manifest necessity to properly declare a mistrial. We do not think either Jourdan or Carey are controlling in the case at bar. In Jourdan the sickness of the prosecutor was held to be insufficient to justify a declaration of a mistrial, because the case was simple and the record showed that another prosecutor could have been found quickly to proceed with the case. In Carey, the Court held that a hearsay statement from a court clerk regarding a juror’s inability to believe police testimony was an insufficient basis to grant a mistrial. We do not consider Carey as standing for the position argued by appellant that hearsay evidence is never sufficient to justify a trial judge in declaring a mistrial.

In any event, there was no objection to the use of hearsay evidence and if such evidence is admitted without objection it can support judicial action. Laporte Corporation v. Pennsylvania-Dixie Cement Corporation, 164 Md. 642, 649, 165 A. 195 (1933); Robinson v. State, 17 Md. App. 451, 462-3, 302 A.2d 659 (1973). It would have been a simple matter for the court to have called the doctor to give testimony as to the juror’s condition, if this objection had been made below.

Denial of double jeopardy motion affirmed.

Appellant to pay the costs.

      . The offer was apparently declined at an unreported bench conference. The co-defendant, Brewer, elected to proceed with 11 jurors and was subsequently acquitted.

      . Md. Code, Courts & Judicial Proceedings Art. § 8-304 provides as follows:
      "The jurors sworn to try a criminal action may, at any time before the submission of the case to the jury, in the discretion of the court, be permitted to separate or may be kept in charge of proper officers.”

        The statute was construed in Midgett v. State, 223 Md. 282, 164 A.2d 526 (1960):
      "We think it clear that under Code (1957), Art. 51, Sec. 29, [now codified as Courts & Judicial Proceedings Art. § 8-304] and under La Guardia v. State, 190 Md. 450, 58 A.2d 913, the separation of the jury is permissible, in the discretion of the trial court, prior to submission, and that prejudice is not to be presumed from such separation simply because of the possibility of influence or contamination through outside contacts. The next question (assuming an absence or lack of adequate caution) is whether such a defect (a) presents an irregularity which is waived if not objected to in the trial court or (b) presents a situation in which either the State must rebut or the defendant must show prejudice. We think that it does not present an error which is so fundamental that it could not either be waived or be disposed of as a matter of proof or of the burden of proof.
      In Kennard v. State, 177 Md. 549, 10 A.2d 710, which was a misdemeanor case, the trial court permitted a separation of the jury after the verdict had been agreed upon, but before it had been rendered. This court viewed the matter as a question of prejudice, vel non, and not as a matter of a denial of a fundamental right, and though expressing disapproval of permitting separation after submission, if found that no prejudice to the defendant has resulted and upheld the conviction....”
      "As to separation, the Court [in La Guardia v. State, supra at 456] refused to recognize any presumption of prejudice and said, on the contrary: 'The complaining party relying upon a violation of the rule against separation of jurors has the burden of showing that the protection intended to be afforded by the rules was lost; * ** The specific holding was that an emergency separation of a juror from the other members of the panel because of sudden illness, where the circumstances indicated that he had no communciation with any outsider except a physician, was not such a separation as would invalidate the verdict.” Id. at 295-297.
      Courts frequently draw a distinction between various types of criminal cases. Annot. 72 A.L.R.3d 248 (1976). Apparently, Maryland draws no such distinction. Midgett v. State, 223 Md. at 293:
      "More significantly, it is to be noted that the statute makes no distinction between different types of criminal cases. The rule is the same for capital cases, for noncapital felonies and for misdemeanors.”


author: Morton, J.,

text:
    MANU THIMATARIGA v. BELINDA C. CHAMBERS et al.
    [No. 1348,
    September Term, 1979.]

      Decided July 11, 1980.

      The cause was argued before Morton, Thompson and Couch, JJ.

      John F. King and Frederick G. Savage, with whom were Anderson, Coe & King on the brief, for appellant.

      Marvin Ellin, with whom were Donald F. Oakley and Ellin & Baker on the brief, for appellee Belinda C. Chambers. Edward C. Mackie, with whom were Robert W. Fox and Rollins, Smalkin, Weston, Richards & Mackie on the brief, for appellee Edmondson Village Medical Center, Inc.
   Morton, J.,

delivered the opinion of the Court.

The appellee, Belinda C. Chambers, brought suit in the Baltimore City Court against the appellant, Manu Thimatariga, a medical doctor, and Edmondson Village Medical Center, Inc. (Medical Center), for alleged negligence in performing a surgical operation upon Ms. Chambers during which Dr. Thimatariga removed her right Fallopian tube, her right ovary and her uterus. During the same operation he removed her left Fallopian tube and her left ovary. No complaint was made as to this phase of the operation.

Count I of the declaration claimed compensatory damages for injuries resulting from the alleged negligence and for failure to obtain Ms. Chambers’ informed consent to the removal of those reproductive organs. Count II was a claim for punitive damages. At the conclusion of Ms. Chambers’ casé, Dr. Thimatariga’s motion for a directed verdict in his favor was granted as to Count II and denied as to Count I. The Medical Center’s motion for a directed verdict in its favor was granted. The jury returned a verdict in favor of Ms. Chambers in the amount of $1,500,000 which was reduced by the trial judge to $1,200,000.

The record indicates that on December 16, 1975, appellee visited the Medical Center to seek an abortion. At the time she was a twenty-five year old, unmarried mother of two boys. After going through certain routine procedures conducted in the Medical Center, she was introduced to the appellant. After reviewing the history she had given and examining her, he performed the abortion by dilatation and curettage (D&C), a procedure, according to appellant’s brief, "that involves suctioning out the contents of the uterus through a vacuum tube.” Tissue obtained from the uterus was compatible with the size of a four to six week’s fetus, according to Dr. Thimatariga.

On December 26, 1975, the appellee returned to the Medical Center and was examined by the appellant. He was of the opinion that the abdominal pains and cramps she complained of were caused by a cyst upon her left ovary and he scheduled her for an operation on January 6, 1976, to remove the cyst.

On January 3, 1976, according to the appellee, she was suffering severe abdominal pains to an extent that "[i]t hurt to breathe, to talk, to walk. It hurt to do anything.” She endeavored to contact the appellant by telephone and finally reached him about 1 a.m. on January 4,1976. He advised her to go immediately to the emergency room of the Lutheran Hospital and he agreed to meet her there. The hospital records indicate she was transferred from the emergency room and formally admitted as an in-patient at 3:30 a.m. She was taken to the operating room about 9 a.m. and there the operation was performed by the appellant.

As he proceeded with the operation, according to the appellant, he observed that her left Fallopian tube had ruptured as a result of a tubal pregnancy and her left ovary had a large cyst. He removed both the left tube and the left ovary. Appellant further testified that in his opinion the condition of the right tube and the right ovary was such that the appellee would never be able to conceive a child and he decided it would be good surgical practice to remove them at that time. He thereupon removed the right tube, the right ovary and the uterus.

The appellee testified that after the operation she was "awakened in the recovery room by Dr. Manu [Thimatariga], He woke me up and asked me how I felt, and then he told me he had given me a complete hysterectomy.” She then went on to state: "I thought I was having a nightmare. I was shocked. I said, 'why,’ and then I went back to sleep. I just couldn’t believe it was happening.” Shé further testified that "he told me that I had had a pregnancy in one tube and the other tube was badly infected, and then he told me that I shouldn’t discuss this type of operation because most people don’t understand it.” When the appellee was asked: "[D]id you ever at any time before this operation was performed, either verbally or in writing, ever authorize Dr. Thimatariga to remove your reproductive organs?,” she replied: "No, I didn’t. I never saw Mr. Manu before the operation. The only time I was made aware of it was after it was over.”

On the other hand, the appellant testified that when he got to the hospital he immediately went to see the appellee and discussed with her the necessity for surgery and the possible need to remove all her reproductive organs. The appellee conceded that she signed some forms before the operation, but stated that "the forms that I did sign didn’t have anything on it, like you showed me at the top, they just had words in the middle. I was in so much pain on January 4th Mr. Savage [appellant’s counsel], I would have probably signed anything.”

Testifying on behalf of the appellee, Dr. Marshall Klavan, an obstetrician and gynecologist, and Dr. John W. Combs, a pathologist, were of the opinion that appellant acted negligently in failing to have certain tests made in the course of his examination of the appellee on December 26, 1975. They testified that had the tests been made the results would have apprised the appellant that the abortion procedure he performed on that date could not have been successful. The tests would have indicated that the fetus was in appellee’s Fallopian tube rather than in her uterus.

They testified further that the right Fallopian tube, the right ovary and the uterus were normal based upon their review of the pathology results. They asserted that had the right tube, the right ovary and the uterus not been removed, the appellee would have been able to bear more children. They pointed out that the loss of estrogen from her ovaries would cause the appellee to undergo physical changes, although the use of Premarin would minimize such changes. They did say that the use of Premarin increased the risk of breast cancer, gall bladder diseases and caused thickening of the blood.

On behalf of the appellant, Dr. James Donald Woodruff, the author of a textbook on gynecologic pathology, testified that because of the condition of the right tube and right ovary, which he observed during his examination of the pathology slides, the appellant had acted in accordance with accepted medical standards when he removed the right tube, the right ovary and the uterus.

Dr. Firooz Beheshti testified on behalf of the appellant and said he was the pathologist at Lutheran Hospital who examined the tissues of the appellee after the operation on January 4, 1976. In his original report, he found that the appellee’s right tube and right ovary, which had just been surgically removed by the appellant, were normal. In March of 1978, which was after suit had been filed by the appellee, he was asked by appellant to review his original findings. Dr. Beheshti testified that after reviewing his original report he discovered he was in error in finding that the appellee’s right tube and right ovary were normal. In fact, he stated, his subsequent findings indicated evidence of chronic pelvic inflammation of the right tube and right ovary.

Dr. Frank Baker, called by the defense, testified that it was not normal practice to conduct the tests which appellee’s expert witnesses said should have been performed at the time of her examination by the appellant on December 26, 1975. Based on the hospital records, the Medical Center records and appellant’s records, as well as the testimony of Dr. Beheshti, he was of the opinion that the removal of the right tube and the right ovary and the uterus was within the acceptable standards of medical care.

In his brief the appellant raises eight issues which we shall address in the order they were presented.

I.

It is first contended that the comments of appellee’s jifmnsel in his opening statement were so prejudicial that it was error to deny appellant’s motion for a mistrial.

It appears that in the course of his opening statement, counsel for appellee advised the jury that since the suit against appellant had been filed, "there has been an effort to cover up facts”; that counsel for appellant had gotten expert medical witnesses to persuade the hospital to send them the pathology slides of the appellee, although the appellee never gave her consent to their transmission to the experts; and that such conduct was contrary to Maryland law. Appellant’s counsel then objected and all counsel approached the bench where appellant’s counsel asked for a mistrial on the ground that he had been accused in front of the jury of committing a crime. After considerable discussion the trial judge announced that he did not think "that a mistrial is warranted at this time. Should this type of statement continue, it may become necessary to grant a mistrial, but at this point I don’t think there is ample prejudice or misconduct to warrant it.”

While we think that the course of conduct followed by counsel for appellee in this regard approached the borders of unfairness and prejudicial misconduct, we are not prepared to say that the trial judge, who had the feel of the courtroom atmosphere at the time, abused his judicial discretion in denying appellant’s motion for a mistrial. See Bailey v. Wray, 230 Md. 359, 362-63 (1963).

Prior to the giving of the opening statements, the trial judge had advised the jury:

"What the lawyers say in their opening statements and what they say in their closing arguments and what they say in making objections or in making motions are not evidence. The evidence consists of the testimony of the witnesses, any exhibits which may be placed into evidence for your viewing, and any facts which may be stipulated to or agreed upon by both sides.”

At the conclusion of the opening statements by both counsel, the trial judge again admonished the jury:

"Let me again remind you that the opening statements of the lawyers do not constitute evidence. At this point you have been told by each attorney what he contends that the evidence will reveal, but you have heard no evidence, so at this time your minds should be completely open and you should decide the case strictly on the evidence that is about to be presented.”

Moreover, when counsel for appellee resumed his opening statement, after the appellant’s request for a mistrial had been denied, he advised the jury:

"I want to say at this point that my reference to Mr. Savage [counsel for appellant] hiring experts and my reference to the fact that records were released by Dr. Beheshti in no way was meant to indicate that Mr. Savage had committed a crime, or that Mr. Savage has done anything wrong. Mr. Savage is an honorable gentleman doing his job for his client. My reference to the violation of this woman’s rights had to do with the fact that Dr. Beheshti, who will be summoned here, had no right to release those records to Dr. Woodruff in 1979 without her permission, and that is what I meant, and if there is any other meaning then I apologize to you and to Mr. Savage.”

We think the advisory instructions of the court and the apology extended by counsel for appellee effectively eliminated any prejudice which might have been generated by appellee’s counsel’s remarks. Certainly, we cannot find that the denial of appellant’s motion for a mistrial at that point entitles him to a reversal of the judgment entered against him.

II.

It is next contended that the trial judge "erred by allowing the Plaintiff [appellee] to attack Dr. Donald Woodruffs integrity in closing argument.”

. During cross examination of Dr. Woodruff, the following colloquy occurred:

"Q. [Counsel for appellee] Why don’t you take a look at the nurse’s notes and familiarize yourself with what the condition [of appellee] really was, Doctor.
A. [Dr. Woodruff] Basically, I don’t believe notes that are written. Sorry about that.
Q. You don’t believe notes that are written?
A. That’s correct.
Q. He said he doesn’t believe notes that are written. Does that go for the pathology report of January 6th, which says that everything was normal on the right; you don’t believe that either, do you?
A. That’s correct.
Q. But you do believe the later one, don’t you?
A. I believe the one that I wrote.
Q. The one you wrote, and you wrote the later one, and gave it to Dr. Beheshti didn’t you?
A. I really don’t know. He just asked me for a consultation and I wrote him what my opinion was.”

The first pathology report, to which appellee’s counsel referred, was dated January 6, 1976. The second report was dated March 16, 1978. On redirect examination Dr. Woodruff testified that he had been initially consulted by appellee just four weeks before the trial, which would have been in early May, 1979.

Immediately prior to closing arguments appellant’s counsel filed a motion in limine to prevent appellee’s counsel from making any comment to the jury about covering up hospital records. The trial judge denied the motion and in the course of his closing argument, counsel for appellee made the following remarks:

"[Mr. Ellin], You have a very important exhibit in this case, one that I think to use the word which you are going to have to consider, and which I suggest to you merits what I am about to say. You all have that hospital chart there and I won’t trouble you to look at it, or point out the page number. The pathology report of January 6, ’76 is page 31 and 32. — and I mean on page 32 one doesn’t have to be a pathologist or a physician to read the phrases here, microscopic diagnosis: The appendix normal, ovary salpinx right, normal. Normal. Salpinx being the medical word for tube. The right tube, normal. Woodruff at least agreed that the ovary and uterus was normal, but then since he stated he wrote the second report and Dr. Beheshti accommodated him and filed that amendment.
(Mr. Savage). Objection.
(Mr. Ellin). Two years after the fact —
(The Court). Just a minute.
(Mr. Savage). I don’t think Dr. Woodruff — he wrote the second report that Dr. Beheshti prepared.
(Mr. Ellin). I just read the testimony where the doctor said I wrote it, and that is why he believes it.
(The Court). The jury has been instructed and is still instructed that it is to use its own recollection as to what the testimony was if there is a conflict.
(Mr. Ellin). Members of the jury, I just read Dr. Woodruffs testimony to you on page 61 and 62. But you do believe the later one, don’t you? The later one being the pathology report of April, 1978, and his answer was: I believe the one that I wrote. Now, what else did he mean other than that? What else did he write? Then we come along March 16, 1978. We suddenly find that the right tube has a fibrous tube ovarian adhesion and fusion of the tubal folds consistent with chronic salpingo oophritis. Beheshti takes the stand and says all of these things were obvious; obvious. Well, if they were obvious in 1978 why in the world weren’t they obvious in 1976? And this nonsense he was used to dealing with fresh tissue after completing a four year residency at University of Maryland simply doesn’t merit belief. On page 60 of his testimony Dr. Beheshti said: Now, if you look at it, talking about the right Fallopian tube, it is very, very, very — three very’s obvious that this Fallopian tube has a very thick wall. Something that is very, very, very obvious in ’78 should have at least been quite obvious if not very, very, very in 1976. I urge you to view that change in 1978 as a monumental attempted coverup of facts, and I would urge you —
(Mr. Savage). Objection.
(The Court). Overruled.
(Mr. Ellin). I would urge you not to give any more weight to that addendum than it deserves, and it deserves nothing. Those hospital records were intact right up until this suit was filed, and then some two years later there is a very convenient change. Can we say that this man didn’t know about the first report? Heck no. We can’t say that. Dr. Beheshti testified that he sent a copy of the January 6, ’76 report to Dr. Thimatariga.”

Appellant contends that these remarks were improper and should have been disallowed for two reasons. First, he says there is no evidence to support the contention that anyone other than Dr. Beheshti wrote the second pathology report. Second, appellee did not contradict Dr. Woodruffs testimony that he was not called into the case until four weeks before the trial.

The Court of Appeals has held that counsel has "great latitude in presentation of closing argument and any restriction on his remarks is within the trial court’s sound discretion.” Dorsey Bros., Inc. v. Anderson, 264 Md. 446, 454 (1972). Although it is true, in the instant case, that the date of Dr. Woodruffs entry into the case was not contradicted, it is not true that there was no conflicting evidence on the authorship of the second pathology report. The testimony of Dr. Woodruff, set out above, raised a reasonable inference that he did have a hand in writing that report. This raised a legitimate question of fact for the jury to decide and we cannot say it was an abuse of the trial judge’s discretion to allow appellant’s counsel to make an argument based upon that question.

III.

Appellant contends that the trial judge erred in allowing counsel for the appellee to change his peremptory strikes after all counsel had submitted their strikes to the court and the jury was being impanelled. He argues that this constituted an abuse of the court’s discretion.

It appears that after an extensive voir dire of the members of the proposed jury, which was to be selected from two jury lists, the trial judge permitted counsel for each of the parties in the case to exercise five peremptory strikes. Counsel made their strikes on the two jury sheets which they bad before them. According to counsel for the appellee, "[a]fter juror no. 2 was called and took his place in the jury box, Plaintiffs counsel rechecked the sheet and noticed the fact that it was a juror he intended to strike. Plaintiffs counsel asked to approach the bench and requested that it was necessary to substitute one of his strikes removing a strike so that that could be utilized to remove proposed juror no. 2. It was pointed out to the trial judge that juror no. 2 was employed by the Baltimore Gas & Electric Company, that Plaintiffs counsel had a number of cases pending against this company, and feared any possible prejudice should this juror know of Plaintiffs counsel’s involvement against his employer. It was later pointed out to the Court that while the jury was on recess and milling around the Courtroom door that Plaintiffs counsel had come through the door almost knocking this proposed juror off balance because of his proximity to the door.”

Over strenuous objection by counsel for appellant, the trial judge authorized the withdrawal of a strike previously exercised against another juror and permitted the appellee’s attorney to strike juror no. 2. In the course of making his ruling the trial judge said:

"Of course, each attorney has the right, an absolute right to strike a specific number, in this case five. It seems to me the real question is whether or not Mr. Ellin — inasmuch as he did have a right to strike Mr. Waltrop in the beginning when he failed to do so, the question is whether or not it was truly inadvertent on his part, or whether it was an after-thought. And I think the second question is whether or not then in evaluating this change would be prejudicial in any way to either side.
Gentlemen, the ruling is that, as I previously indicated, I think that it is a bona fide mistake on the part of — an oversight on the part of Mr. Ellin. I think that the Court does have — I think it is proper for the Court to exercise discretion in permitting him to utilize the strike insofar as this juror is concerned, and I believe it was a bona fide mistake. So, I will permit this juror to be removed and Alternate No. 1 would replace him. Alternate No. 2 would then become Alternate No. 1, and we will pick a new Alternate No. 2.”

In Bluthenthal & Bickart vs. May Co., 127 Md. 277 (1915), the Court of Appeals was confronted with the identical issue. There the trial judge permitted counsel for the plaintiff, over the objection of the defendant, to withdraw one of his strikes and to exercise that strike to exclude the individual who had been selected as the foreman of the jury which had been impanelled but had not yet been sworn. The Court of Appeals, in approving the action of the trial judge, said, at 285-86:

"It does not appear that the defendant was injured by the action complained of or that the jury which actually tried the case was not composed of competent and qualified jurors. The authorities support the proposition that it is not reversible error for the Court of its own motion to exclude a juror, even for insufficient cause, if an unobjectionable jury is afterwards obtained. .. . This question is examined and authorities collected in 12 Ency. PI. & Prac. 381-384, where it is said: 'In the absence of any showing to the contrary, it will be presumed that in excusing a juror the Court acted on correct principles, and that the excuse was sufficient to warrant its action. In any event, the exercise of its discretion will not be revised unless it is clearly apparent that it has been abused. * * * That the Court may exercise its discretion in this respect after acceptance of a juror, before completion of the panel, or before the person selected has been sworn and charged with the case, is generally conceded.’ What the Court did was done in the exercise of its discretionary power, and as there was no abuse of its discretion resulting in injury to the defendant its action does not constitute a cause for reversal.”

Although May Co., supra, is a case of fairly early vintage, we think it represents the law of this State today. See Johnson v. State, 18 Md. App. 571, 573-74 (1973). In the case at bar the trial judge carefully articulated his reasons for permitting counsel for the appellee to pursue the course he desired to take with respect to the unacceptable juror. There is not an iota of evidence that the jury which actually tried the case was not composed of competent and qualified jurors. We see no abuse of the trial judge’s discretion.

IV.

It is next contended that the trial court erred in failing to give the jury instructions on the doctrine of informed consent as requested by appellant.

Appellant’s requested instructions were numbered 38 and 39 and read as follows:

"38. If you find that a reasonable person in the patient’s position would have given consent to the surgery, had she been informed that her right tube was completely closed at one end so that there was no chance that she could have any children, and there was ‘ a risk of immediate post operative complications and long term problems such as pain and recurring inflammation of the pelvic organs, and the risk of possible cancer of the ovaries, and of the cervix and uterus, had the organs been left in, if you find that a reasonable person in the patient’s position would have given their consent to such a procedure to remove the right tube, ovary and uterus, then you must return a verdict in favor of the defendant with regard to consent.
39. If you find that a reasonable person in the patient’s position would have given consent to surgery, had she been informed of the condition of the tubes as indicated by Dr. Manu, and material risks described to her, then you must find in favor of the defendant with regard to the matter of consent.”

The trial court rejected the appellant’s request and gave the following instructions on informed consent:

"If you find from the evidence in this case that the injuries and damages of which the plaintiff complains resulted through either a violation of the standard of gynecological and/or hospital care on the part of the defendant, or that such procedure was performed unnecessarily without the informed consent of the plaintiff, then in such case your verdict should be for the plaintiff.
I mentioned the term 'informed consent’ which simply means that in a non-emergency situation a doctor is under a duty to explain the surgery to the patient, and to warn the patient of any material risks or dangers inherent in the procedure so as to enable the patient to make an intelligent and informed choice as to whether or not to undergo such surgery. A material risk is one which a physician knows or ought to know would be significant to a reasonable person in the patient’s position, in deciding whether or not to submit to the particular surgical procedure.
If you find that there was no emergency need to remove the plaintiffs right ovary, tube and uterus, and if you find that the defendant did not inform the plaintiff of the material risks and complications associated with such surgery, and further if you find that a reasonable person would not have permitted removal of their reproductive organs had they known of those consequences, then your verdict must be for the plaintiff. On the contrary, if you should find that the plaintiff was informed of the surgical procedure and the nature of the operation, and that the plaintiff did, in fact, consent to the operation and consent as indicated by the consent form in evidence to Dr. Thimatariga’s use of his discretion in the manner indicated in that consent form, if you find that this consent was actually given by the plaintiff, and that the surgical procedure was in accordance with that consent, then your verdict would be for the defendant.”

And at the close of the instructions the trial court stated:

"If you find that the plaintiff did indicate or gave her consent for Dr. Thimatariga to exercise his discretion as to what was necessary to remove, then you must find in favor of the defendant with regard to the question of consent.”

When the jury charge was completed, counsel for the appellant made the following exceptions:

"(Mr. Savage) And your Honor, do you have 38 and 39?
(The Court) Yes.
(Mr. Savage) I would also except to the failure to give instruction 38, which deals with the matter of consent, and I think that is a proper instruction based on the testimony of Dr. Thimatariga, and 39, I will except, which also deals with something you may have given similar to that. I am not sure.
(The Court) I think I did. I am quite sure I did. (Mr. Savage) Those would be the extent of my exceptions, Your Honor.”

Sard v. Hardy, 281 Md. 432 (1977), announced the controlling rule of informed consent:

"The rule is that a plaintiff cannot recover under the doctrine unless he can prove by a preponderance of the evidence that he would not have given his consent to the proposed procedure had full and adequate disclosure been made at the time consent was originally given. Karp v. Cooley, 493 F.2d 408, 422 (5th Cir.), cert. denied, 419 U.S. 845 (1974); Aiken v. Clary, 396 S.W.2d at 676; Wilkinson v. Vesey, 295 A.2d at 690.” 281 Md. 448-49.

This requirement

"is to be resolved by an objective test: whether a reasonable person in the patient’s position would have withheld consent to the surgery or therapy had all material risks been disclosed. If disclosure of all material risks would not have changed the decision of a reasonable person in the position of the patient, there is no causal connection between nondisclosure and his damage.” 281 Md. 450.

Maryland Rule 554 b. 1 states that the trial court "need not grant any requested instruction if the matter is fairly covered by instructions actually given . . . .”

Rule 554 d. requires a high degree of specificity in objections to jury instructions:

"If a party has an objection to any portion of any instruction given, or to any omission therefrom, or the failure to give any instruction, he shall before the jury retires to consider its verdict make such objection stating distinctly the portion, or omission, or failure to instruct to which he objects and the ground of his objection. Opportunity shall be given to make the objection in open court out of the hearing of the jury upon application either orally or in writing, made before or after the conclusion of the charge.”

And Rule 554 e. strictly limits appellate intervention in jury instructions:

"Upon appeal a party in assigning error in the instructions, shall be restricted to (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct distinctly objected to before the jury retired and (2) the grounds of objection distinctly stated at the time, and no other errors or assignments of error in the instructions shall be considered by the appellate court.”

Appellant objected only to the court’s failure to give his requested instructions, not to the instructions that were actually given. The issue therefore is whether the actual instructions "fairly covered” the matter of Informed consent.

The gist of both the requested instructions is: "If you find that a reasonable person would have given consent to the surgery had she been informed [of the material risks] then you must return a verdict in favor of the defendant.”

The gist of the actual instructions is merely the converse: "[I]f, you find that a reasonable person would not have [consented] had they (sic) known of [the material risks] then your verdict must be for plaintiff.” Both of these versions accurately state the law of informed consent, of that there can be no dispute.

The problem is that the trial court added a comment:

"On the contrary, if you should find that the plaintiff was informed ... and ... did, in fact, consent ... then your verdict would be for defendant.”

Appellant argues that a necessary implication of this statement is that if the jury did not find actual consent they had to find in favor of plaintiff. We do not agree for two reasons. First, standing alone, the statement is not only true, it was favorable to the defendant. If appellee had been informed and had consented, the jury would have been required to return a verdict for appellant. And this was a relevant issue because there was evidence that she had signed consent forms.

Second, we are required to consider the statement in the context of the whole charge. Schwier v. Gray, 277 Md. 631, 637 (1976); Rafferty v. Weimer, 36 Md. App. 98, 110 (1977). The trial judge first stated the correct rule of Sard v. Hardy, supra, on informed consent, then he added the disputed comment. It is apparent that the purpose of the comment was to clarify the effect of the informed consent rule on the evidence of the signed consent forms. Since the comment immediately followed a correct statement of the rule, we do not believe that it is likely that the jury inferred from it an incorrect version of the rule. In any event, the appellant did not take specific exception to this particular comment of the trial judge. Had he done so the comment could have been clarified.

Thus, the trial court did not err by refusing to give the requested instructions because the matter of informed consent was fairly covered by the instructions that were actually given.

V.

It is contended that the trial judge committed reversible error in allowing the appellee to repeat crucial elements of her case in rebuttal. Specifically, it is argued that "Dr. John Combs was allowed to testify in rebuttal (1) that the pathology slides did not show any evidence of chronic pelvic inflammatory disease and (2) that the plaintiff would have been able to have more children had her right tube, right ovary and uterus been left in. This was the same testimony offered in plaintiffs case in chief by Dr. Klavan and Dr. Combs. In addition, Belinda Chambers was allowed to repeat her initial testimony that she had had no conversation with Dr. Thimatariga at the hospital prior to surgery.”

In Riffey v. Tonder, 36 Md. App. 633, 645-46 (1977), Judge Moore enunciated for this Court the basic definition of rebuttal testimony and the rules governing its admission:

"Basically, rebuttal evidence is any competent evidence which explains, is a direct reply to or a contradiction of material evidence introduced by an accused in a criminal case or by a party in a civil action. State v. Hepple, 279 Md. 265, 270, 368 A.2d 445 (1977), aff'g, Hepple v. State, 31 Md. App. 525, 358 A.2d 283 (1976); Mayson v. State, 238 Md. 283, 289, 208 A.2d 599, 602 (1965); Lane v. State, 226 Md. 81, 90, 172 A.2d 400, 404 (1961), cert. denied, 368 U.S. 993 (1962); 6 Wigmore on Evidence § 1873 (Chadbourn rev. 1976).
It is also well settled that whether evidence is properly rebuttal is a matter for the exercise of judicial discretion. In Maryland, an appellate court will not reverse for error in this determination unless the ruling of the trial court was both 'manifestly wrong’ and 'substantially injurious.’ Hepple v. State, supra, 31 Md. App. at 532, 358 A.2d at 288.”

Here a review of the evidence indicates that Dr. Combs, appellee’s expert witness, was asked in the course of his rebuttal testimony:

"Would you tell us based on reasonable medical probability whether the right ovary, the right tube, and the right uterus, if left intact, was reasonably anticipated and probable of producing a pregnancy?
MR. SAVAGE: Objection, Your Honor.
THE COURT: Overruled.”

Counsel for the parties then approached the bench and an extended argument was presented by both counsel after which the trial judge announced: "I think this specific question, I think I would sustain the objection.” As a result, Dr. Combs never answered the question. Thus, the record simply does not support the appellant’s assertion that Dr. Combs was allowed to testify in rebuttal that the appellee would have been able to have more children but for the removal of her right tube, right ovary and her uterus.

It is clear from the record that Dr. Combs in his testimony during the presentation of the appellee’s case was confined to an analysis of the pathology slides from which he concluded that there was no evidence that the appellee suffered from a chronic pelvic inflammatory disease. On the other hand, Dr. Woodruff, the appellant’s expert, testified during the presentation of appellant’s case that enlarged photographs of the slides, which had been introduced by the appellant and which were before the jury at the time of Dr. Woodruffs testimony, demonstrated that the appellee had a chronic pelvic inflammatory disease. These photographs were not before the jury at the time of Dr. Combs’ original testimony and it is apparent that the major thrust of his rebuttal testimony was to contradict Dr. Woodruffs interpretation of the photographs. The substance of his rebuttal testimony in this regard is contained in his response to a question: "I see no evidence in those photographs that would support any diagnosis of chronic pelvic inflammatory disease ....” While Dr. Combs may have referred in his rebuttal testimony to the pathology slides he had testified to previously, it appears to have been solely for the purpose of rebutting Dr. Woodruffs analysis of the photographs used by him in the course of his testimony on behalf of the appellant.

It is clear from the record before us that the trial judge did not cavalierly permit Dr. Combs’ rebuttal testimony but carefully weighed every objection appellant interposed to such testimony. Whether Dr. Combs’ testimony wás proper rebuttal testimony was a matter within the sound discretion of the trial judge. Riffey v. Tonder, supra. Certainly the admission of his testimony was not, in our opinion, both manifestly wrong and substantially injurious. We see no abuse of judicial discretion.

The same may be said of the charge that the appellee was allowed to repeat her initial testimony that she had had no conversation with appellant at the hospital prior to surgery. The appellant had testified at length concerning a conversation he had with appellee prior to the operation during which he said he explained the consequences of the surgical procedures he might follow in the course of the operation. In the course of her original testimony the appellee stated that she had not even seen the appellant just prior to the operation. In her rebuttal testimony when asked if appellant had a conversation with her just prior to the operation, she was permitted to respond: "No, it never took place.” The admission of this five word sentence, even if assumed to be error, was not so substantially injurious to the rights of the appellant as to require a reversal of the judgment entered on the jury’s verdict.

VI.

We see no merit in the appellant’s contention that the trial judge "erred by allowing the plaintiff to introduce a portion of the hospital record without allowing the defendant to offer an additional relevant portion at the same time.” It appears that the appellee was permitted to introduce all the records of the Lutheran Hospital relating to her condition while a patient, except the March 16, 1978, pathology report. This report indicated that after another examination of the pathology slides by Dr. Beheshti, he concluded that appellee’s right tube and right ovary were chronically diseased. As we have already noted, in an earlier report Dr. Beheshti had found them to be normal.

Although the appellant was permitted to introduce the March 16, 1978, report as a part of his case, he asserts that he should have been permitted to introduce it at the time the appellee put in the other hospital records. Otherwise, he contends, "a distorted impression may linger and work its influence on the jury at the subconscious level.”

It is, of course, well settled that "[t]he overall conduct of a trial is subject to the sound direction of the trial judge. This Court will not interfere with that direction unless there is a clear abuse of the trial judge’s discretion in this regard which results in prejudice to the accused.” Turner v. State, 7 Md. App. 74, 78 (1969).

We are not convinced that the action of the trial judge in requiring appellant to await the presentation of his case before permitting the introduction of the March 16, 1978, report created such a distorted impression of the hospital records that the impression may have lingered and worked its influence on the jury at the subconscious level. We see no abuse of the trial judge’s judicial discretion.

VII.

Appellant also contends that the trial judge erred in directing a verdict in favor of the Medical Center, appellant’s codefendant. The trial judge advanced as a reason for so doing that he found "no evidence in the plaintiffs case which could warrant permitting the jury to decide whether there was an agency relationship between the Center and Dr. Thimatariga.” Appellant did not object to the directed verdict.

The Medical Center has moved to dismiss this appeal, insofar as it affects it. It argues that appellant’s failure to object to the motion for a directed verdict precludes him from raising that issue on appeal.

Appellant, however, relies on Maryland Rule 552 a, which says:

"In an action tried by a jury any party may move, at the close of the evidence offered by an opponent or at the close of all the evidence, for a directed verdict in his favor on any or all of the issues. Such motion shall state the grounds therefor. An objection on behalf of the adverse party to such motion shall be entered as of course.”

Appellant argues that he was an adverse party to the Medical Center; that an objection to the Medical Center’s motion for a directed verdict was thus automatically entered on his behalf; and that therefore the issue of the directed verdict has been preserved. We do not agree.

The Court of Appeals has adopted the following definition of an adverse party: "a party to an action on the opposite side of an issue raised by the pleadings.” Bauman v. Woodfield, 244 Md. 207, 219 (1966). Both appellant and his codefendant, Medical Center, were on the same side of the issue raised by the pleadings. At the time of the trial, therefore, they were not adverse parties. It is only now, since appellant has been found liable and his ex-codefendant has been determined to be free of liability that appellant perceives an adversary relationship with Medical Center. The appellant, having failed to enter an objection to the motion for a directed verdict or to oppose it in any manner, has no standing to raise that issue now. Maryland Rule 1085. This appeal, insofar as it pertains to Medical Center, is dismissed.

VIII.

Appellant finally contends that the trial court erroneously refused to grant a new trial because of the "grossly excessive” verdict of $1,500,000, which was reduced by the trial judge to $1,200,000. Appellant compares this verdict to other personal injury cases with lower awards and infers that the jury was "in a state of passion and partiality.” We note, however, that the trial judge thoroughly instructed the jury on the matter of damages and charged that its verdict was "not to be governed by sympathy, prejudice or public opinion.” Furthermore, the judge said, in response to the motion for new trial, "that [the verdict] was neither so large as to be shocking, nor punitive in nature.”

The Court of Appeals recently stated in Greenstein v. Meister, 279 Md. 275 (1977):

"It is axiomatic that whether a new trial should be granted because of the inadequacy or excessiveness of a verdict lies in the sound discretion of the trial judge. In a long line of cases, this Court has unswervingly refused to disturb the exercise of the trial judge’s discretion in denying a motion for new trial on those grounds. See, e.g., Kirkpatrick v. Zimmerman, 257 Md. 215, 218, 262 A.2d 531 (1970). If, in the exercise of his discretion, the trial judge determined, as he evidently did, that the amount of the verdicts did not shock his conscience, we see no basis for disturbing his judgment.” 279 Md. 295.

In the instant case we too see no basis for disturbing the trial judge’s refusal to reduce further the jury’s award.

Judgment in favor of Belinda C. Chambers, appellee, affirmed; appeal as to Medical Center, appellee, dismissed; costs to be paid by appellant.

      . Maryland Rule 543, § a 4 provides: "Whenever it appears that the trial of an action by a jury involves two or more plaintiffs or two or more defendants having adverse or hostile interests ... the court may allow additional peremptory strikes, from additional lists of jurors to be prepared by the clerk, but no party shall be allowed more than four such strikes.” (Emphasis supplied.) The issue of five strikes being allowed each counsel has not been raised. Maryland Rule 1085.