Gordon v. Opalecky

• Decision Date: 22 March 1927
• Docket Number: 13.
• Parties: GORDON v. OPALECKY.
• Court: Maryland Court of Appeals

137 A. 299

152 Md. 536

GORDON v. OPALECKY.

No. 13.

Court of Appeals of Maryland

March 22, 1927

Appeal from Superior Court of Baltimore City; Joseph N. Ulman Judge.

"To be officially reported."

Action by Blanche Heflin Opalecky against Reuben Gordon and L. Byron Nicodemus. Judgment for plaintiff against defendant first named, and he appeals. Affirmed.

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

Edward L. Ward, of Baltimore (Edwin W. Wells, of Baltimore, on the brief), for appellant.

Leonard Weinberg, of Baltimore, for appellee.

OFFUTT J.

Mrs Blanche Heflin Opalecky, the appellee in this case, was injured in a collision between an automobile owned and operated by the appellant, Reuben Gordon, and a motortruck driven by one L. Byron Nicodemus, under circumstances which under the evidence in this case, warranted the inference that it was occasioned by the appellant's negligence. The accident occurred on November 4, 1924, and on March 31, 1925, the appellee brought this action in the superior court of Baltimore city against the appellant and Nicodemus to recover compensation for her injuries. The case was tried in due course before the court and a jury, and, the verdict and judgment being for the appellee against the appellant, he appealed. He made no point in this court that the appellee was not entitled to recover, so that the only questions raised by the appeal with which we are concerned relate to the extent of the appellee's injuries, the evidence relating thereto, and the proper measure of compensation therefor. There are in the record 12 exceptions, of which the eighth, ninth, tenth, and eleventh were waived in this court, and of the others the first 7 relate to the admissibility of evidence and the twelfth to the trial court's action on the prayers, and these will be considered in order.

All of the first 7 exceptions relate to hypothetical questions which the court allowed over the appellant's objection, and in dealing with them it will be necessary to review so much of the evidence as relates to the nature and extent of the appellee's injuries which were the subjects of those questions.

The appellee, who was at the time of the accident sitting on the front seat of the automobile at the right of the driver, was, as a result of the collision, thrown out of it on her face in the road, and she asserts that she sustained thereby certain injuries which she described in her testimony.

She said:

"That she was cut right here, cut further down, cut very bad; her nose was cut very bad right here, and then she was cut on the jaw and her lower lip, and the whole side of her face was cut and bruised all over, and she had two pieces of glass up her nose which were taken out by Dr. Dehoff over a week after the accident happened. That she was treated out there that night by Dr. Kasten. That she was taken into Mrs. Davis' house, Mrs. Davis living close by, and was rendered first aid. That after this she was taken to her home and treated by Dr. Lilly for about a week, and that after this Dr. Dehoff treated her for about three weeks. She was cut on the legs. That her injuries were very painful, and she was home for over a month from her work. That she was a machine operator in a cotton duck mill and made on the average of $20 a week on piece work. That she does not know the exact time she was home, but it was over a month. That she was not able to work steadily after she went back to work; she was nervous at times and played out, and she had headaches all the time and was so nervous and could not work. That she went to Dr. Pearson and Dr. Anderson for her nerves. That she went to see Dr. Spear for her nerves, and he sent her to the other men. That there is something wrong with her nose now, as she cannot breathe properly through it. * * * That she is still unable to breathe properly through her nose. That she was able to breathe all right before the accident happened and never had any trouble of this kind before. That the pieces of glass were taken out on the left side of her nose. That the injuries to her legs healed up, and are entirely well now. That she had pains in both knees and also in her chin for about a month, but that she does not have any pains there now. That the injury to her knee was in the front of her kneecap. That in addition to this her whole body was bruised. * * * That she could not sleep at night or eat right and was hysterical at times. That she is still nervous and does not sleep well at night. That before the accident she weighed between 133 and 135 pounds, and since the accident she has lost about 10 pounds, of which she has never gained any back. * * * That her nose still gives her a good bit of trouble, and she is still very nervous, but that her legs are all right now."

She also said that she was married on February 9, 1926, and keeps house for a family of five persons. Following her testimony, Dr. W. J. Kasten, who lived nearby, heard the crash of the collision, went at once to the scene of the accident and administered "first aid" to Mrs. Opalecky, testified that when he first saw her, she was quite severely hurt and bleeding very freely from lacerations of the mouth. Dr. B. A. Lillich, who followed Dr. Kasten on the witness stand, said that he had examined her on November 4 and 5, 1925, and that at that time she had cuts on her nose and other parts of her body; that she was nervous and suffering from shock; that she complained of her respiration, "breathing through her nose," and he advised her to see a specialist. She did go to see Dr. George W. Dehoff, who examined her first on November 13, 1924, and continued to treat her until December 7, 1924, and he said that when he discharged her, outside of her nervousness she was cured. Describing her condition and treatment, Dr. Dehoff testified:

"That when he first saw her she was very nervous and excited; she was bruised considerably, and she had a cut below each knee about a half inch and her upper lip and her left cheek cut about half an inch, and her left naris, the left part of the nose was torn. That he probed in there and found something hard, and the night after he took out a piece of glass. That he took out two pieces of glass altogether. That the other piece of glass is mislaid he thinks. That the piece of glass that is mislaid is about one-half or two-thirds the size of the piece exhibited. That he took it from the inside of the left naris, the inside of the left nose, and that the other piece was right behind it in the same place. That he thought there was a puncture of some kind in her nose, and that he treated her until the 7th of December, and that her condition when he discharged her was that she was very nervous and excited, but that the injuries were healed and the nose had healed up. That she has a scar here on the side of her face about half an inch, the upper lip, and the other came from the side about half an inch up in there (indicating). That the flare of the nostril was torn by the pieces of glass, which had gone straight down in the flare of the nostril and torn open, and the glass was down back, and it was jammed very tight, driven in by force. That from what he knows as a medical man those injuries were very painful."

Following this testimony, Dr. Franklin B. Anderson was called as an expert on behalf of the appellee. He did not see Mrs. Opalecky until June 5, 1925, and at that time he found a scar one half inch long on the upper lip just below the left naris, and a scar on the inside of the left interior naris, " where she told him that a piece of glass had been removed," and that "the external nose showed a deflection to the right, which was the result of the fracture of the inside bone"; that the internal nose showed a "marked indentation of the entire inside septum to the left," and that that condition interfered with her "proper nasal respiration," and at that time she also "showed the beginning of a catarrhal condition; that in most of these catarrhal conditions of the middle ear, they are due to some deflection or nasal obstruction, some deflection of the septum or nasal obstruction; that as far as he could find out the catarrhal condition was the result of the deflection which he found. " He was then asked this question:

"She testified she was thrown bodily out of a machine on November 4, 1924, and struck her face on the ground; were the injuries that you saw to her nose such as could be the probable and natural result of injuries such as that, the striking of her face against the ground?"

The court overruled an objection to that question, and that ruling is the subject of the first exception. Since the answer to that question could not possibly have prejudiced the appellant, it is unnecessary to consider the formal objections urged against it, but it is sufficient to say that we find no reversible error in that ruling. The witness was then asked:

"She has testified that she has a great deal of difficulty in breathing, particularly she has difficulty in sleeping at night because she cannot breathe properly; can you say whether or not that is the natural and probable result of the condition that you found?"

An objection to that question was also overruled, and that ruling is the subject of the second exception. It is said that that question is improper because there was no testimony that appellee had difficulty in sleeping at night "because" she could not breathe properly. That criticism is just, because while there was testimony that she had difficulty in sleeping, and that she could not breathe properly, no one had said that her sleeplessness was caused by her difficulty in breathing, and the question, because it assumed that fact, was bad and should not have been...