Plank v. Summers, 45

• Decision Date: 13 December 1954
• Docket Number: No. 45,45
• Citation: 205 Md. 598,109 A.2d 914
• Parties: Robert E. PLANK, Edward T. Glenn, Bruce Van Cauwenberg, v. Samuel J. SUMMERS.
• Court: Maryland Court of Appeals

Page 598

205 Md. 598

109 A.2d 914

Robert E. PLANK, Edward T. Glenn, Bruce Van Cauwenberg, v. Samuel J. SUMMERS.

No. 45.

Court of Appeals of Maryland.

Dec. 13, 1954.

Thomas B. Lawrence, Washington, D. C., for appellants.

Hal C. B. Clagett, Upper Marlboro (Lansdale G. Sasscer, Jerrold V. Powers, Lansdale G. Sasscer, Jr., and Sasscer, Clagett & Powers, Upper Marlboro, on the brief), for appellee.

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

HENDERSON, Judge.

On the former appeal in this case, Plank v. Summers, 203 Md. 552, 102 A.2d 262, 267, we held that the trial court erred in limiting to pain and suffering the damages recoverable by three members of the United States Navy, for injuries sustained in an automobile accident. We remanded the case 'for the purpose of allowing the value of the hospital and medical services, rendered to the appellants by the United States Government, to be added to the amounts of the judgments.' We also stated, 203 Md. at page 556, 102 A.2d at page 264, that the principal question before us was 'whether the jury should have been allowed to consider and to award the appellants, plaintiffs below, the reasonable value of the hospital and medical services rendered to them without charge or imposition of liability by a United States Navy hospital.' That question was answered in the affirmative and is the law of the case. Cohill v. Chesapeake & Ohio Canal Co., 177 Md. 412, 10 A.2d 316; Chayt v. Board of Zoning Appeals, 178 Md. 400, 13 A.2d 614; Carter v. City of Baltimore, 197 Md. 507, 513, 80 A.2d 19. It would serve no useful purpose to review the authorities discussed in our previous opinion in the instant case, including United States v. Standard Oil Co., 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067, or the more recent case of United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. ----, except to say that we adhere to the views previously expressed, and that we find nothing in the Gilman case in conflict therewith.

The appellants state the well-established principle that the trial court may not vary the mandate of an appellate court, and complain that the trial court permitted the appellees to question the reasonableness of, and the necessity for, the services rendered. We find no merit in that contention. Clearly, if the value claimed was unreasonable by comparison with the usual charges made for similar services, the defendant should be entitled to produce evidence tending to disprove or minimize the claim. Not only did our former opinion refer to the 'reasonable value' of the services rendered, but we noted, 203 Md. at page 555, 102 A.2d at page 263, that the appellants' claim was "to recover the fair value of the services rendred by the National Naval Medical Center at Bethesda in proportion to the prevailing charge by private physicians, surgeons and institutions." We think it was implicit in the opinion that the services must be necessary, in accordance with the general rule that a plaintiff 'be allowed only such damages as have been affirmatively proved with reasonable certainty to have resulted as the natural proximate and direct effect of the injury'. Riley v. Naylor, 179 Md. 1, 7, 16 A.2d 857, 860. In answer to the appellants' contention that the burden of proof was on the appellee, insofar as a diminution of damages is concerned, it is sufficient to say that no instruction on the point was asked, and there were no objections to the court's charge by the appellants except for a request that the court instruct the jury 'not to consider whether or not the entire hospitalization period was necessary'. Since there was some evidence tending to show that the period of hospitalization, by private standards, was unreasonably extended, this instruction was properly refused. We may note, however, that necessity, in the sense of a relation of cause and effect, might well depend upon the facts of the particular case. These patients were not at liberty to return to their distant homes and employ private surgeons, nor could they receive adequate treatment in a Naval barracks. Under these circumstances the comparison with civilians loses much of its force, and we think the jury might properly consider these facts in connection with the question of necessity.

Under the court's instructions, the jury rendered verdicts of $300, $650, and $700, respectively, representing the value of the hospital and medical services rendered. The appellants argue that the smallness of these verdicts, in the light of the seriousness of the injuries sustained, was occasioned by rulings of the trial court that hampered the presentation of their case. The principal objection is to the refusal of the court to grant a continuance in order to permit them to lay a proper foundation for the introduction of the Naval Hospital records in evidence. It appears that these records were produced at the first trial, but not admitted in evidence when it was shown that the appellants were not required to pay for these services. Before the partial new trial began, the appellants had seasonably caused a subpoena duces tecum to be issued, addressed to the Commanding Officer at the Naval Hospital. Hospital records purporting to be the records of the appellants' cases were produced in court in the custody of a Chief Hospital Corpsman, who testified he had received them from the Chief Master-at-Arms and had brought them by direction of the Legal Officer at the Naval Hospital. Upon objection by the defense, the court ruled that a proper foundation had not been laid. There was no objection to this ruling, and it is conceded to be technically correct.

The record does not show any request for a continuance at this point, although the stenographer noted a 'side bar conference'. Counsel for the appellants asserts that a request for continuance was then made and refused. Counsel for the appellee admit that the question came up at the 'side bar conference', but state that the court suggested that plaintiffs' counsel telephone to the Naval Hospital, and apparently this was done. In any event, the trial of the case proceeded. The record shows that in the course of the examination of the first witness, called as a medical expert by the appellants, a motion for continuance was made and refused. The motion came after the witness had been asked his opinion as to the reasonable value of the necessary treatment by the attending physician for a fractured skull. An objection was made and sustained on the ground that while the witness had read the transcript of the previous trial wherein the attending physician had testified to his diagnosis of a fractured skull and X-ray examination, nothing was contained in the transcript in regard to treatment.

It became apparent at this point, if it was not apparent before, that a proper trial of the issues as to the value of hospital and medical services rendered could not be had without the hospital records. Counsel for the appellants stated that he had called the Legal Officer at the Naval Hospital after the summons was issued and had explained that the records should be accompanied by 'someone who would be familiar with where these records were kept and that they were kept in the regular course of business'. He stated that he had called the Naval Hospital 'today' and that the Legal Officer had said 'he had never in all his experience had a record rejected until today'. Evidently, he was unwilling to detail a proper witness to identify the records. The court, however, took the position that 'the responsibility rests squarely upon counsel for the plaintiffs to prepare his case and be ready for trial and that you cannot complain because you failed to do that and ask for the unreasonable request of a continuance'.

We think there was a showing of reasonable diligence on the part of counsel, and surprise on his part. It is difficult to see how he could be charged with failure to anticipate that his request to the Legal Officer would be disregarded. The statement of opposing counsel that they would have been willing to stipulate that these were the official records, had they been asked before the trial, comes with rather bad grace, for they stood firmly on the objection...