Brinand v. Denzik
| Decision Date | 09 August 1961 |
| Docket Number | No. 302,302 |
| Parties | Nannie BRINAND (Brenan) v. Mary Ellen DENZIK. |
| Court | Maryland Court of Appeals |
James L. Wray, Annapolis (William J. McWilliams and McWilliams & Melvin, Annapolis, on the brief), for appellant.
George B. Woelfel, Annapolis, for appellee.
Before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY and SYBERT, JJ.
Mary Ellen Denzik, plaintiff-appellee, suffered injury to her back when the automobile she was driving was involved in a collision with an automobile driven by the defendant-appellant, Nannie Brinand. At the trial of Mrs. Denzik's suit against Miss Brinand the matter of negligence was not in issue, it being conceded by the latter. The sole question submitted to the jury was the amount of damages due Mrs Denzik. The jury returned a verdict in the amount of $7,479. After judgment nisi was entered against her, Miss Brinand filed a timely motion for a new trial which the court denied, directing the entry of final judgment. Miss Brinand appealed from the judgment.
At the trial, Mrs. Denzik testified that prior to the accident she had worked as a clerk-cashier in a grocery store and earned $25 a week. She said she had not been able to work since the accident, though she had tried once. She was 24 years of age at the time of the accident. Dr. Landmesser, a specialist in orthopedics, testified that Mrs. Denzik had a permanent injury to her low back, but did not estimate a percentage of disability. He stated that she would not be able to work at any employment which would require repeated bending over and straightening up, or lifting articles, as was true in her prior job, but could engage in other work not involving such activities. No evidence was offered to prove Mrs. Denzik's life expectancy.
The only contention of Miss Brinand in this Court is that the trial court erred in denying her motion for a new trial in that it failed to consider a certain piece of paper on which the jury foreman had tabulated the damages.
The background of the controversial piece of paper was created by counsel for Mrs. Denzik in his closing argument, after the court's instructions had been given to the jury. The attorney summed up for the jury the medical findings described by Dr. Landmesser and the actual damages suffered by Mrs. Denzik. Then, in attempting to suggest a figure for permanent disability, he continued substantially as follows, as described in appellant's brief: 1
Counsel for Miss Brinand objected immediately and the trial judge sustained the objection and instructed counsel for Mrs. Denzik to refrain from such references. No further argument along these lines was made. Miss Brinand's counsel made no further issue of the allegedly objectionable remarks.
After argument of counsel was concluded, the jury retired to consider its verdict, which it returned in favor of Mrs. Denzik in the amount of $7,479. Thereupon the jurors left the box and the foreman gave the clerk the narr and a copy of the jury list on the back of which appeared the tabulation of damages which gave rise to this appeal. The figures were not seen by the clerk until after the jurors had gone, the judge had retired and counsel were leaving the courtroom. Counsel were called back by the clerk to note how the jury had made up their verdict.
The notations on the back of the jury list read as follows:
"Auto .............. 600.00
Drs................. 67.00
150.00
85.00
X-ray .............. 57.00
Brace .............. 50.00
Treatments ......... 20.00
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1029.00 Actual Exp
1250.00 Salary Loss
-------
2279.00
5200.00 - 10% dis. for 40 yrs
-------
7479.00 - total
Favor of Plaintiff
/s/ J. Irving Waters,
4/22/50 Foreman."
In moving for a new trial Miss Brinand pointed to this paper to support her argument that the verdict as to the amount of damages was against the evidence, and that the only foundation for the jury's specification of '5200.00-10% dis. for 40 yrs.', which she translates as '$5200.00 for ten percent permanent partial disability for 40 years', was the allegedly improper closing argument of Mrs. Denzik's counsel. She attacks as erroneous the refusal of the trial court to grant her motion, grounding her appeal on the court's alleged failure to consider the notations on the paper in ruling on the motion, in light of the fact that there was no evidence of the extent of Mrs. Denzik's disability or of her life expectancy.
The record itself does not disclose what consideration, if any, the trial judge gave to the paper handed in by the jury foreman. No transcript of the proceedings on hearing of the motion for a new trial was supplied. However, we think it is fair to assume, since the motion for a new trial was prompted by the existence of the paper, that it was discussed at the hearing of the motion and considered by the court, but found not to have controlling weight.
Appellee contends there was no impropriety in the remarks of her counsel. She points out that Dr. Landmesser definitely stated that her injuries had permanent consequences and described how her activities would be limited thereby. In support of the proposition that where there is evidence of permanent injury and of the age, health and habits of the plaintiff, as here, the jury may take notice of longevity in absence of proof of life expectancy, she cites the following authorities: 25 C.J.S. Damages § 81, p. 594; 20 Am.Jur., Evidence, § 1215, p. 1066; 17 C.J., Damages, § 331, p. 1036; McCaffrey v. Schwartz, 1926, 285 Pa. 561, 132 A. 810. She urges that her counsel was within the limits of propriety in suggesting a low percentage of disability for a life expectancy claimed to be conservative for a woman of the age, health and habits of the appellee. However, in view of our disposition of the case, we do not find it necessary to decide the question.
Even if we assume, without deciding, that the disputed remarks of appellee's counsel were improper, and that the jury were influenced by them, we find a compelling reason why the appellant is not entitled to the relief sought. The record discloses that the appellant did not ask the trial court to declare a mistrial when the remarks were made, and did not then or at any time before the jury retired request the court to instruct the jury to disregard them. This being so, she has waived her right to object to the verdict. She has preserved no ground for appeal, and therefore this appeal raises no question of law. Clearly, if the appellant desired to protect herself against the possibility that the questionable remarks might influence the minds of the jurors, she had only to request the court to give a further...
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