Ihrie v. Anthony, to Use of Government Emp. Ins. Co.

• Decision Date: 05 August 1954
• Docket Number: No. 175,175
• Parties: IHRIE et al. v. ANTHONY, To Use of GOVERNMENT EMPLOYEES INS. CO.
• Court: Maryland Court of Appeals

Page 296

205 Md. 296

107 A.2d 104

IHRIE et al. v. ANTHONY, To Use of GOVERNMENT EMPLOYEES INS. CO.

No. 175.

Court of Appeals of Maryland.

Aug. 5, 1954.

J. Gilbert Prendergast, Baltimore (Clark, Thomsen & Smith, Baltimore, on the brief), for appellants.

Paul F. Due, Baltimore (David K. Ebersole, Jr., and Due, Nickerson, Whiteford & Taylor, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

The defendants appeal from a judgment for $20,000 rendered on the verdict of a jury in a suit brought by the plaintiff to her own use, and to the use of the carrier of her automobile collision insurance, to recover for personal injuries sustained by her in an automobile accident and for damages to her sutomobile.

The plaintiff was driving her automobile, a 1949 Chevrolet two-door sedan, on the Washington Boulevard near Elkridge, in Howard County, at about 4:30 P.M. on July 23, 1951, and had stopped at the intersection of that Boulevard and Montgomery Road because of a traffic light which had turned red. Her husband was sitting beside her. While they were waiting for the traffic light to change, a truck owned by the defendants and driven by a sixteen year old boy employed by them as a truck driver ran into the rear of the plaintiff's car. The plaintiff and her husband were both injured. She testified that she was thrown forward by the impact of the collision, that her right knee struck the dashboard and that when she came back (from being thrown forward), her head 'snapped.' Damage to the plaintiff's car was extensive. Among other things, the seats were torn loose from the floorboards and the front seat arms made of one and one-eighth inch steel tubing were bent. The cost of repairs to the car was about $680.

The plaintiff testified that immediately after the crash her neck started to swell and her husband tore off a necklace which she was wearing and which was choking her.

The plaintiff and her husband were taken to a hospital in Baltimore and were examined by a doctor on duty in the accident department. At that time the plaintiff was more concerned over her husband's condition than her own. He was kept at the hospital overnight and she stayed there to be near him, but not as a patient. The doctor who examined her stated that she complained of a little soreness in her neck and in one knee. He testified that her examination was negative and that no treatment was given her. She testified that he had told her there was nothing wrong with her.

For about a week or so, according to her testimony, she suffered severe headaches and pains in the head, neck and knee. About two weeks after the accident, on August 8, 1951, she suffered 'the most terrific pain' in the back of her head and down one side. Her husband then took her to see her family physician in Baltimore, Dr. Michael Abrams. He gave her some medication, ordered her to bed and told her she should be x-rayed. She returned on August 10th, still complaining of pains in similar areas.

At about that time the plaintiff's husband got work in Norfolk, Virginia, and she went there with him for about two months during which she had a number of diathermy treatments. On returning to Baltimore she again visited Dr. Michael Abrams, and at his suggestion had x-rays taken by his son, Dr. Robert C. Abrams, an orthopedist. Other x-rays were later taken by others. There was a narrowing of one intervertebral space in the cervical (neck) region. In March, 1952, her head was put in traction to stretch the neck; and after that treatment, Dr. Robert Abrams prescribed a 'Thomas collar', which is a kind of brace designed to serve the same purpose.

Dr. Robert Abrams' testimony shows that in addition to a narrowing of the intervertebral space, there was also the beginning of some arthritic change in the way of little spurs, which he described as 'Nature's way of trying to build up support to prevent too much motion when discs are damaged.'

The plaintiff had a severe attack of pain on February 27, 1952, and Dr. Michael Abrams was called to attend her then. She had another severe attack while at Ocean City in June, 1952, and still other attacks in February, May, August and October, 1953. The last of these occurred about a month before the trial of this case.

The plaintiff was examined by two other doctors. One of them examined her at the request of her counsel, the other at the request of the defendant. Both were called by the defense.

Much of the medical testimony elicited by the defendants was to the effect that the narrowing of the intervertebral space was a natural degenerative process due to the age of the plaintiff and that there was no evidence of herniation or rupture of a disc. On the other hand, Dr. Robert Abrams testified: 'I feel that the complaints, the condition which Mrs. Anthony [the plaintiff] has was caused by an accident, that this accident for which I treated this patient either caused the localized damage or greatly aggravated the possibility of some damage having been there before.'

Dr. Robert Abrams also testified that it was his opinion that the plaintiff's condition would not improve; that it would either remain stationary or get worse. He recommended hospitalization for about four weeks for observation and 'conservative' treatment and estimated the cost at $800 to $1,000. He doubted the need for surgery.

The plaintiff was not employed at the time of the accident and had not been for several years. She had done office work in Baltimore for seven or eight years prior to 1942, and her salary was $55 a week. In Norfolk she worked from 1942 to 1945, but her compensation is not stated. She also worked for a real estate developer there in 1947 and 1948 and received a salary of $45 a week, plus some benefit (presumably housing accommodations) from living on the development and a bonus when the work was finished. After the accident involved in this suit, and after her husband had left her, she tried working as a door-to-door canvasser for a real estate concern, but found that she could not stand it and gave it up after about two days. There is testimony by several doctors that the plaintiff could do clerical work if she could sit upright. There seems to be some question as to how much bending over she could do in the course of such work. There is also dispute as to whether she needs to continue to wear the Thomas collar. The plaintiff herself claims that she cannot get along without it. There is also evidence that she will continue to be subject to 'attacks'. The medical testimony strongly indicates that she tends to exaggerate her ailments.

The appellants, while not denying liability, challenge the sufficiency of the proof of damages for loss of earnings and the instructions of the trial court with regard thereto. They concede that the instruction is in the usual form which originated with Stockton v. Frey, 4 Gill 406, but claim that there is no competent evidence to support it.

The testimony of Dr. Robert Abrams indicates that, in his opinion, the plaintiff's condition will not improve and that she will remain subject to recurrent attacks, and seems to be sufficient evidence of the permanence of her injury to warrant the submission of that matter to the jury. Montgomery Bus Lines v. Diehl, 158 Md. 233, 148 A. 453.

The appellants next attack the instructions pertaining to damages on the ground that the declaration, even as finally amended during the trial, made no claim for any loss of earnings prior to the trial and that the trial court, therefore, should not have permitted damages to be recovered for any such loss. This objection, if raised in the trial court, could readily have been met by an amendment. A careful examination of the appellants' objections to the Court's instructions shows, however, that this ground of attack was not included among them. That being so, it cannot be raised in this Court. General Rules of Practice and Procedure, Part Three, III, Rule 6(d).

It is also contended by the appellants that there was no competent evidence of lost earnings upon which the jury could base any award of damages. This contention rests largely upon the fact that the plaintiff was not employed at the time of the accident and had not been employed for several years prior thereto. As above stated, there was evidence of past earnings of the plaintiff, and it was admitted without objection.

The fact that the plaintiff was unemployed at the time of the accident and for several years prior thereto is not fatal to her right to recover. Miller v. McCoy Truck Lines, 1952, 243 N.W. 483, 52 N.W.2d 62; McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710; Germ v. City and County of San Francisco, 99 Cal.App.2d 404, 222 P.2d 122; 15 Am.Jur., Damages, Section 91, page 502. In Baltimore Transit Co. v. State for Use of Castranda, 194 Md. 421, 71 A.2d 442, 450, this Court held that there was no prejudice in admitting evidence relating to a business in which the decedent had engaged as a sideline for only about eight months in the year preceding that in which he was killed in the accident which gave rise to the suit, and which business had been sold in that preceding year. This Court also commented that the trial judge had 'fully instructed the jury concerning the various factors to be taken into consideration in determining the amount of damages.'

Testimony with regard to the appellee's earnings goes back over a number of years, and the position of the appellants seems to be that its remoteness (perhaps plus the appellee's not having been employed for three or four years before the accident) is so great that the jury had no basis upon which to make an award of damages for loss of earnings. They cite Waltring v. James, 136 Md. 406, 111 A. 125, but that case is not controlling because the evidence of past earnings there held properly excluded related to only two periods of temporary employment, one of...