Mangione v. Snead

• Decision Date: 29 October 1937
• Docket Number: 3,4.
• Parties: MANGIONE v. SNEAD (two cases).
• Court: Maryland Court of Appeals

195 A. 329

MANGIONE v. SNEAD (two cases).

173 Md. 33

Nos. 3, 4.

Court of Appeals of Maryland

October 29, 1937

Appeals from Baltimore Court of Common Pleas; George A. Solter Judge.

Action by Coolidge Snead, an infant, by his mother and next friend Ella Snead, and by the latter for herself, against Benjamin Mangione, trading as the Diamond Cab Company, and another. Judgments for plaintiffs, and defendants appeal.

Reversed and new trial awarded.

J. Calvin Carney, of Baltimore (Preston A. Pairo, of Baltimore, on the brief), for appellants.

Foster H. Fanseen, of Baltimore (Leon R. Saiontz, of Baltimore, on the brief), for appellees.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON JJ.

OFFUTT Judge.

On November 18, 1935, Coolidge Snead, the infant son of Ella Snead, while crossing Presstman street at its intersection with Mount street in Baltimore city, was struck was injured by a taxicab owned by Benjamin Mangione and operated by Gilbert R. Kines, his employee, under circumstances which appellees contended made the appellants liable to the infant plaintiff for the injuries he sustained as a result of the accident. To enforce that liability, Coolidge Snead, by his mother and next friend, brought an action in the court of common pleas of Baltimore city against Mangione and Kines, and Ella Snead sued the same defendants in the same court for the loss of his services and for expenses incurred in treating his injuries.

The two cases were tried together, the trial resulted in verdicts for both plaintiffs, and on each verdict a judgment was entered. These appeals are from those judgments.

Appellants concede that the evidence was legally sufficient to permit a recovery, they do not question the propriety of the court's rulings as to that issue, but they contend that the trial court (1) erred in refusing to instruct the jury that there was in the case no evidence legally sufficient to show that Coolidge Snead suffered any permanent injuries as a result of the accident, and (2) in admitting certain medical testimony concerning his injuries. These contentions are submitted by eleven exceptions, of which the first ten deal with rulings on the prayers.

The rulings on the admissibility of evidence all relate to an attempt on the part of the plaintiffs to show that as a result of the injuries caused by the accident the infant plaintiff's mind was permanently impaired and its development retarded.

It appears without contradiction that he suffered not discoverable physical injuries of a permanent character, so that, unless the injuries did cause some permanent impairment of his mind, it necessarily follows that he was not entitled to recover compensation for permanent injuries. Whether they did have that effect was the real question in the case as it comes to this court.

And, since the determination of that question depends in part at least upon the propriety of the rulings involved in the exceptions relating to the admissibility of evidence, they will be first considered.

In describing the accident, eyewitnesses said that the cab knocked the boy down and dragged him 'about two doors'; that he made no outcry; that he lay in the street unconscious, and was bleeding from his mouth and nose. He was at once placed in a cab with his mother, who lived near the scene of the accident, and driven to the hospital. His mother said that just before they reached the hospital the boy asked where they were going; that he talked wildly and acted 'like he was ready to run away'; that she took him by the arm and he walked into the hospital. She also said that on the night of the accident he had a 'vomiting spell,' and she sent for Dr. Hatcher, the family physician. In describing his condition before and after the accident she said: 'Since the accident his conduct has been pretty good, but does not have good remembrance; that he gets into 'mystery' all the time, that mystery means tearing up, destroying things; not long ago he set fire to the window curtains and they burned down; he daubs paint on the wall and when asked about it he would not know anything about it; was not like that before the accident; has not attended school since the accident; * * * that ever since the accident he has been wetting the bed, which he never did before; for at least three weeks after the accident he soiled his clothes during the day; did not do this before the accident; does not play with children like he did before; * * * he went to school in Accomac County, Virginia; his marks were good in school; he did not go as regularly as he should during the year he attended school in the country; he has been going to school in Baltimore since 1933; he was never involved in any other accident.

'Q. Will you tell his Honor and the gentlemen of the jury whether or not when you saw the boy he had any marks on his head? A. Yes, sir, he did. He had a scratch beside his nose and one over his forehead. She saw a hematoma, that anyone who looked at the boy could see his bleeding forehead and the side of his nose are hematoma because she saw it.'

The first witness offered by the plaintiffs was one Henry Hammond, who described the accident and the boy's appearance and apparent injuries at that time. Following his testimony, Dr. Philip F. Lerner was called. He saw the boy for the first time in April, 1936, more than four months after the accident. After testifying that he had 'obtained the history from the mother of an automobile accident in 1936' and that the boy had been under his care 'until a week ago,' he was asked to say 'what if anything he found wrong' with the boy. Defendants objected to the question, but the court over that objection permitted the witness to answer it 'subject to exception,' and this testimony followed:

'A. I found that the child was backward, didn't answer questions which you would expect a normal child of his age to answer.

'(The Court) Doctor, suppose you give us any outward evidence of injury you found, if any at all.

'(The Witness) No physical signs, outside of hyperactive reflexes there were no external signs on the boy. That the boy was backward and did not react as a normal boy of nine years of age should react to questions, that he was unable to answer questions as to current events such as a normal child should and did not respond as well as a normal child; that he rendered no treatment since the mother said he was under the care of a family physician.'

The witness was then asked: 'Doctor, assuming that this boy had had concussion of the brain on November 18, 1935, would you say from your examination that the condition you have described would or would not be the result of a concussion of the brain?' An objection to that question was also overruled, and the witness allowed (also subject to exception) to answer, and he replied: 'I think he had had a concussion means disturbance in either behavior or mental condition; that he did not know the boy's condition so far as normality was concerned, prior to the accident; and that he had looked up his school record.' Those rulings are the subject of the first, second, and third exceptions.

At the time those questions were asked, there was not evidence of any kind in the case that the boy had ever had a concussion of the brain, it did not appear that the witness knew anything of the physical injuries which he suffered as a result of the accident, except what he had learned from an undisclosed and unsworn statement by Ella Snead, and from a hospital record which contained these entries: 'Provident Hospital, Accident Room Record N. 26158. Date 11/18/35, Name, Coolidge Snead. Address 1628 Presstman Steet. Age 10. Colored. Sex, male. Occupation, school. Brought by G. R. Kines, Diamond Cab 968. Admitted to emergency room 2:24 P. M. Injury: Abrasion of left arm. Treatment: Cleansed, Scott's applied. Admitted? No. Sent to home. Condition good. Intoxicated, No.' The witness did not testify that from any examination which he himself made that he was able to say either that the boy had had a concussion of the brain, or that his mental condition when the witness examined him was caused by the accident. Under those circumstances there was no basis for the assumption that the boy had suffered a concussion of the brain, or for allowing the witness to testify that the boy's mental condition was the result of such a concussion. He admitted that while he had 'looked up his school record' he knew nothing of the boy's condition 'so far as normality was concerned' before the accident, and therefore had no factual basis for comparing his mental capacity at that time with his mental capacity when he came under the observation of the witness.

While he was not the 'family physician' of the Sneads, Dr. Lerner may be classified as an attending physician of Coolidge Snead. As his attending physician, under the rule stated in Crockett v. Davis, 81 Md. 134, 149, 31 A. 710, he was qualified to state his opinion of the mental capacity of the boy when he came under his observation without first stating the facts and circumstances upon which his opinion was based. Davidove v. Duvall, 160 Md. 345, 352, 153 A. 417, and cases there cited. But even so, if it definitely and clearly appeared that there was in fact no rational basis for the opinion, it had no probative force, Donnelly v. Donnelly, 156 Md. 81, 143 A. 648; Livingston v. Safe Dep. & Tr. Co., 157 Md. 492, 146 A. 432; Davidove v. Duvall, supra.

It has been held, Standard Accident & Life Ins. Co. v Wood, 116 Md. 575, 594, 82 A. 702, not to be reversible error to permit an expert witness to express an opinion based upon facts assumed but not in evidence when the question is asked, if such facts are later proved in ...