Abend v. Sieber

• Decision Date: 14 January 1932
• Docket Number: 83.
• Citation: 158 A. 63,161 Md. 645
• Parties: ABEND v. SIEBER.
• Court: Maryland Court of Appeals

158 A. 63

161 Md. 645

ABEND v. SIEBER.

No. 83.

Court of Appeals of Maryland

January 14, 1932

Appeal from Circuit Court, Baltimore County; C. Gus Grason, Judge.

Action by Esther M. Sieber against John A. Abend. From a judgment for plaintiff, defendant appeals.

Reversed and remanded for a new trial.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, PARKE, and SLOAN, JJ.

Walter L. Clark, of Baltimore (Clater W. Smith, of Baltimore, and Jenifer & Jenifer, of Towson, on the brief), for appellant.

Arthur R. Padgett, of Baltimore (T. Wilbur Meads, of Towson, on the brief), for appellee.

SLOAN J.

At the trial of this case, in which the judgment appealed from was in favor of the plaintiff (appellee), the defendant excepted to three rulings of the court, two on the admissibility of evidence, the other to the granting of the plaintiff's only (damage) prayer, the overruling of special exceptions to it, and the refusal of the defendant's third and fourth prayers.

The declaration, after describing the accident, says: "The said plaintiff was then and there seriously and permanently injured about the head, body and limbs, caused to suffer great physical pain and mental anxiety and caused to suffer a miscarriage, and was otherwise injured and damaged," etc. No contention is made that the evidence does not show negligence on the part of the defendant or that the plaintiff was not injured, but the contention is that there is no evidence legally sufficient to show that the plaintiff sustained any permanent injury or that the miscarriage followed as a result of the accident.

If the physical condition of the plaintiff, following the accident which occurred September 8, 1929, down to the time of the trial in March, 1931, was attributable to the accident, there would be evidence legally sufficient to submit the question of the permanency of her injuries to the jury. City Passenger Ry. Co. v. Baer, 90 Md. 97, 44 A. 992; Montgomery Bus Lines v. Diehl, 158 Md. 233, 240, 148 A. 453.

According to the evidence, Dr. Frank Eldred, an uncle of the plaintiff by marriage, was called to attend the plaintiff. He said he examined her "and found her bruised on her left side from her arms to her ankle and suffering abdominal pain and slight discharge of blood from her vagina and of course * * * thought it was a threatened miscarriage." He was obliged to leave, and the third day turned the case over to Dr. G Carville McCormick, who attended Mrs. Sieber for three or four days. On the 17th she was taken to the University Hospital, Baltimore, where she was in charge of Dr. Cecil W Vest, and remained there six days. She returned to the hospital on October 16th, and the following day was operated on by Dr. Vest, who testified: "The condition which I found was an abdominal pregnancy. The natural pregnancy is a pregnancy that occurs in the uterus. It sometimes occurs in either of the Fallopian tubes. An abdominal pregnancy is outside the tubes, before you get to the Fallopian tubes. * * * In this case I found the fetus outside the tubes." The pregnancy was in the third month. After the operation and removal of the fetus, the plaintiff remained in the hospital about forty days. After returning home from the hospital, she was treated until in February, 1930, by Dr. Eldred. The plaintiff testified that she still suffers pain. Some days she can be up and around and get along pretty good; cannot stand without wearing an abdominal support.

Dr. Thomas K. Galvin, called on behalf of the defendant, testified that it is not always necessary to operate in cases of extra-uterine pregnancy, but that it usually is.

A damage prayer in the usual form, including permanent injury, was the only one submitted by the plaintiff. The defendant specially excepted on the ground that there was no legally sufficient evidence that the plaintiff had sustained any permanent injury, and this exception was overruled. The defendant's third and fourth prayers were to the same effect as the special exception to the plaintiff's prayer, so that all the prayers and the special exception may be considered together.

There is no evidence in the record that the accident had anything to do with the miscarriage or abortion, and none to show that an abortion would not have been necessary even if the accident had not occurred. There is no evidence from which the jury might have inferred that the injuries complained of excluding the miscarriage or abortion, would have had any permanent effect. It might be significant that the plaintiff has complained of pain, suffering, and disability from the time of the accident, and that a reasonable inference might be drawn from those facts to attach liability to the defendant as the cause (...