Kujawa v. Baltimore Transit Co.

• Decision Date: 18 January 1961
• Docket Number: No. 115,115
• Parties: , 89 A.L.R.2d 1166 Elizabeth M. KUJAWA et al., etc. v. BALTIMORE TRANSIT COMPANY and George Ford.
• Court: Maryland Court of Appeals

Page 195

224 Md. 195

167 A.2d 96, 89 A.L.R.2d 1166

Elizabeth M. KUJAWA et al., etc. v. BALTIMORE TRANSIT COMPANY and George Ford.

No. 115.

Court of Appeals of Maryland.

Jan. 18, 1961.

I. Duke Avnet, Baltimore (Herman Shapiro, Baltimore, on the brief), for appellants.

Patrick A. O'Doherty, Baltimore (William A. Hegarty, Baltimore, on the brief), for Baltimore Transit Co.

Frederick J. Green, Jr., Baltimore (Lord, Whip, Coughlan & Green, Baltimore, on the brief), for George Ford.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

Claiming, primarily, that the jury verdicts were inadequate, the plaintiffs-appellants (the Kujawas, Elizabeth M., Sylvester H., and Sylvester A., mother, son and husband-father respectively) appealed from the judgments entered by the trial court on the verdicts for and against the defendants-appellees (the Baltimore Transit Company and George Ford).

The jury assessed total damages of $3,315-$500 to the mother and $2,700 to the son for personal injuries and $115 to the husband-father for loss of services and hospital and medical expenses--against both defendants, but the trial court entered a judgment n. o. v. in favor of the transit company on the ground that there was no evidence of negligence on its part.

The claim for damages arose out of a collision between a bus of the transit company with an automobile owned and operated by Ford, in which the mother and son were passengers. The accident occurred on November 21, 1956, at the intersection of Eastern Avenue and 54th Street in the village of Colgate in Baltimore County. There was no dispute as to the liability of Ford, but, as will later appear, there was a wide difference of opinion as to the extent of the personal injuries sustained by the mother and son.

The Kujawas attack the verdicts and judgments in five general areas claiming (i) that the trial court erred when it refused to propound a question to the prospective jurors on voir dire intended to ascertain the existence of bias or prejudice with respect to the size of jury verdicts; (ii) that the trial court erred in rulings on the evidence and in its instructions to the jury; (iii) that the trial court, by its caustic remarks and minimization of the extent of the injuries sustained by the mother and son, prevented the plaintiffs from having a fair trial; (iv) that the verdicts were grossly inadequate; and (v) that it was error to grant the transit company a judgment n. o. v. With respect to this last contention we note that the appellants raise it only in the alternative, apparently apprehensive that if this Court should reverse the judgments for one or more of the other reasons assigned, the grant of the motion would be unassailable at a new trial unless raised in this appeal.

(i).

The voir dire question submitted was:

'Have you read any article or literature or have you heard any discussion recently on amounts of verdicts in negligence cases, and, if so, have you formed any ideas with reference to amounts of jury verdicts?'

The plaintiffs aver that this question was motivated by their desire to counteract what they characterize as a 'steady stream of indoctrination' flowing from the insurance companies to the public generally in such volume as to adversely affect jury verdicts in negligence cases of plaintiffs having honest claims. The claim is, because the court refused to ask the question, that 'persons sat on the jury panel who were obviously predisposed against bringing in an adequate jury verdict.' There is nothing in the record, however, to support the contention or to show that the plaintiffs were prejudiced by the action of the court. The question was therefore properly excluded. Clearly the interrogatory, assuming the subject of the inquiry was proper, was not so framed as to probe for the existence of cause for disqualification which is the sole purpose of the voir dire examination. Grossfeld v. Braverman, 1954, 203 Md. 498, 101 A.2d 824. Even if a juror had formed or expressed an opinion as to the adequacies or inadequacies of jury verdicts in negligence cases, that fact would not have disqualified him. A juror to be competent need not be devoid of all beliefs and convictions. All that may be required of him is that he shall be without bias or prejedice for or against the parties to the cause and possess an open mind to the end that he may hear and consider the evidence produced and render a fair and impartial verdict thereon. Garlitz v. State, 1889, 71 Md. 293, 18 A. 39, 4 L.R.A. 601. Moreover, since the question was in the nature of a 'fishing' expedition condemned by us in other cases--see, for example, Emery, to Use of Calvert Ins. Co. v. F. P. Asher, Jr., & Sons, Inc., 1950, 196 Md. 1, 75 A.2d 333--the denial of it by the trial court was clearly not an abuse of its wide discretion in the matter. Other than this we can add nothing to the recent pronouncements of this Court where it has been called upon to determine the propriety of questions asked on voir dire. See, for instance, Casey v. Roman Catholic Archbishop, 1958, 217 Md. 595, 143 A.2d 627, 72 A.L.R.2d 893, a civil case, and Brown v. State, 1959, 220 Md. 29, 150 A.2d 895, a criminal case. The exclusion of the question was proper.

(ii).

Since three of the five assignments of error in rulings on the evidence and instructions to the jury involve one or more phases of the testimony of Dr. Andrew C. Gillis, we shall consider these first and then the other two involving loss of wages and the medical bills.

In addition to a thumb injury (the causal connection of which was disputed), which subsequently required an operation resulting in a 'fifteen per cent permanent partial disability,' and an injury to her knee, the mother also testified as to the emotional or nervous symptoms, such as headaches, dizzy spells, blackouts and blurred vision, she claims she had suffered as a result of her worries about her son. But, when Dr. Gillis was asked if he could state an opinion as to the probability of the cause of the emotional and nervous conditions of the mother, he replied that he could not 'be definite about it at all' and explained his answer by adding that 'there are so many causes for general nervousness that it is very hard to state at this late stage just how much the accident had to do with the woman's condition.' Despite this admission and explanation, however, counsel for the Kujawas, in an effort to establish a causal connection, made numerous other attempts to have the doctor testify to the probability that the mental condition of the mother was the result of the accident, but each question was objected to and each objection was sustained by the court. And, at the close of the evidence, the court, in its instructions to the jury, though not excluding recovery of damages for the mental condition caused by fear for her son as the result of having witnessed the accident, refused to allow recovery for any condition caused by worry as to what the future might hold for the son.

In its charge to the jury, after preliminarily advising it that it should award or assess as damages such an amount as would be commensurate with the injuries the mother sustained as a result of the accident, the trial court went on to give the usual stock instruction in such cases, which, in pertinent part, was as follows:

'In reaching that result you should take into consideration the condition of her health, physically and mentally [emphasis supplied], immediately before the accident in comparison with what it was right after the accident and what it has been since * * * [which] was proximately and directly due to the accident. You will also consider, if you find that she suffered any injuries * * * to what extent such injuries * * * have persisted * * *, and whether any * * * are still present, whether she is [now] suffering [therefrom], and whether she will be affected by any such injuries for anytime from the present into the future [emphasis supplied]. Also * * * take into consideration * * * to what extent such injuries are calculated to have prevented, * * * [or] may continue to prevent, or affect, her in the pursuits or activities which she otherwise could have engaged in * * *.'

The court then specifically advised the jury--and this is the crux of the objection--that in assessing damages to the mother, it 'should not include any damages for any nervous or mental condition, in whole or in part, which * * * resulted from her fear that something will happen in the future [emphasis supplied] to her son.'

The claim here is that this instruction, and the prior rulings of the court in excluding the evidence of Dr. Gillis, precluded the jury from considering the mental condition of the mother resulting from her fears about the condition of her son. We do not agree.

The rulings on the evidence were not improper under the circumstances. But, the Kujawas, relying primarily on Langenfelder v. Thompson, 1941, 179 Md. 502, 20 A.2d 491, 493, 136 A.L.R. 960 ['an expert witness should not be barred from expressing his opinion merely because he is not willing to state his conclusion with absolute certainty'], insist that it was error to exclude the opinion of Dr. Gillis, who was a neurologist as well as the treating physician, in that if the doctor did not wish to express an opinion grounded on probability he should have been allowed to do so on the basis of a possibility. There is no need to consider this contention at length, since it is obvious, as the trial court pointed out, that the witness in effect excluded himself from testifying further when he declared that he could 'not be definite about it.' The rulings of this Court have been consistent in holding that an expert witness must base his opinion on probability and not on mere possibility. Ager v. Baltimore Transit Co., 1957, 213 Md. 414, 421, 132 A.2d 469.

The instruction on this point was likewise correct under the law...