Rhone v. Fisher

• Decision Date: 07 February 1961
• Docket Number: No. 84,84
• Citation: 224 Md. 223,167 A.2d 773
• Parties: Ted RHONE v. Joel N. FISHER.
• Court: Maryland Court of Appeals

Page 223

224 Md. 223

167 A.2d 773

Ted RHONE v. Joel N. FISHER.

No. 84.

Court of Appeals of Maryland.

Feb. 7, 1961.

Harry Goldman, Jr., Baltimore (Richard Whittington Whitlock and Walter E. Litvinuck, Baltimore, on the brief) for appellant.

Max Sokol and Melvin J. Sykes, Baltimore (Dickerson, Nice & Sokol and Emanuel H. Horn, Baltimore, on the brief) for appellee.

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

BRUNE, Chief Judge.

The plaintiff-appellant, Rhone, was injured on December 23, 1958, when he was struck by an automobile owned and operated by the defendant-appellee, Fisher. Fisher admitted liability and the case was accordingly tried on the question of damages. After a three-day trial, the jury returned a verdict in favor of Rhone for $1,500. Rhone appeals from a judgment entered thereon. He claims that there was error in the instructions as to damages, resulting in an inadequate verdict.

There is some question as to whether or not the accident was the proximate cause of a postero-myocardial infarction (death of a part of the heart muscle) which Rhone suffered three days after the accident, but that question is not directly in issue on this appeal. ¹ Rhone adduced the testimony of a cardiac specialist that it was, in his opinion, highly probable that there was a causal connection between trauma due to the accident and the infarction. Rhone claims that the evidence was sufficient to show that injury due to the accident had shortened his life expectancy, and the only such injury which he alleges is the infarction. There is no evidence of any actual loss of earning power of the plaintiff as a result of the accident (assuming the infarction to have been caused thereby) except for three weeks of hospitalization and four weeks of convalescence following his heart attack. On the contrary, he had worked for some months prior to the trial without the loss of a day and at double the pay he was earning at the time of the accident.

The instructions as to damages included one which may be called a standard instruction since it is substantially in the form which has been in use in the State since Bannon v. Baltimore & Ohio R. Co., 1866, 24 Md. 108, 116, 125, and has been repeatedly approved since that case. See McMahon v. Northern Central Ry. Co., 39 Md. 438, 441, 453; Eyler v. Allegany County Commissioners, 49 Md. 257, 260-261, 277; People's Bank of City of Baltimore v. Morgolofski, 75 Md. 432, 435, 444, 23 A. 1027; Baltimore Traction Co. v. Wallace, 77 Md. 435, 437, 442, 26 A. 518; Adams v. Benson, 208 Md. 261, 271, 117 A.2d 881. Under this instruction the jury were told that in estimating damages, they were to consider the plaintiff's condition and health prior to the accident as compared with his present condition and health in consequence of the injuries sustained as a result of the accident; his medical and hospital expenses, if any, incurred for treatment of such injuries; to what extent, if any, said injuries disabled him and prevented him from engaging in his usual employment and activities and any loss of earnings suffered thereby; whether the injuries were permanent in nature; to what extent, if at all, they were calculated to disable the plaintiff from engaging in those employments or activities for which, in the absence of such injuries, he would have been qualified; and the physical pain and suffering and mental anguish, if any, to which he had been subjected in the past and might be subjected to in the future as a result of said injuries; and the jury were further instructed that they should allow the plaintiff such damages as, in their opinion, would be a fair and just compensation for said injuries, losses and expenses.

The other instruction pertinent to the appellant's contentions reads as follows:

'I instruct you that even if you should find that the accident was the proximate cause of or precipitated the myocardial infarction suffered by the plaintiff, you may not consider as an element of damage the probable loss in years of life between what you may find Mr. Rhone's life expectancy might have been, were it not for this heart injury, and what you may find his life expectancy to be now as a result of said injury. The law does not permit any recovery for any such foreshortened life expectancy, if there be any. You may, however, consider this evidence in determining the seriousness of the injury and the consequent pain and suffering and the mental anguish, if any, to which the plaintiff has been and will be subjected in the future.'

The appellant's first contention here is that the trial court should have instructed the jury that the plaintiff was entitled to recover damages for any shortening of his life expectancy due to an injury sustained as a result of the negligence of the defendant. This appears to be the first time that this court has been called upon to consider that question. Comparatively recent English cases support the appellant's contention. See Flint v. Lovell [1935] 1 K.B. 354 (C.A.1934); Rose v. Ford [1937] A.C. 826, reversing [1936] 1 K.B. 90 (C.A.1935); Roach v. Yates [1938] 1 K.B. 256 (C.A.1937); Morgan v. Scoulding [1938] 1 K.B. 786 (1937); Mills v. Stanway Coaches [1940] 2 K.B. 334 (C.A.1940); Benham v. Gambling [1941] A.C. 157 (1940).

In Rose v. Ford, supra, Lord Roche stated that he felt some anxiety (pp. 859-862) over the question of the assessment of damages, but he seemed willing to leave the matter to the trier of the facts as one of the elements to be included in arriving at a lump sum verdict. He conceded that discussion of the matter 'leads into paths of abstruse thought and technicalities of the law far remote from the practical directions which judges will have to give to themselves and to juries for the purposes of determining questions of amount.' He also feared that 'this element of damage [might] * * * assume a frequency and a prominence in litigation far greater than is warranted in fact' and might result in the inflation of damages in undeserving cases and that this might work to the detriment of deserving cases; but he expressed confidence in the good sense of judges and juries in dealing with the problem.

Less than four years later, when Benham v. Gambling, supra, was decided these matters which had concerned Lord Roche (who by then had retired) seem to have become more, rather than less, acute. The views of the House of Lords were expressed by Viscount Simon, L. C., each of his colleagues who participated in the case merely stating his concurrence. There the actual question for decision was whether an award of £1200 as damages for shortening the life of a child two and a half years old, who died as a result of injuries sustained in an automobile collision due to the defendant's negligence, should be sustained or reduced. ² The decision was that this award should be reduced to £200. The problems and difficulties of 'indicating what are the main considerations to be borne in mind in assessing damages under this head' are rather extensively explored.

Viscount Simon first discarded the statistical or actuarial test, because it was based on a 'vast mass of vital statistics' giving a figure which would not necessarily be properly attributable to any given individual (an observation which seems very pertinent to our present case). ³ He went on to say: 'And in any case the thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life.' Variables due to age and the ups and downs of life were recognized, and the Lord Chancellor said that it 'would be fallacious to assume * * * that all human life is continuously an enjoyable thing, so that the shortening of it calls for compensation * * * on a quantitative basis.' He further said: 'The question thus resolves itself into that of fixing a reasonable figure by way of damages for the loss of a measure of prospective happiness. Such a problem might seem more suitable for discussion in an essay on Aristotelian ethics than in the judgment of a court of law, but in view of the earlier authorities we must do our best to contribute to its solution.' He also stated that the test was not subjective, that the right sum to be awarded depended on an objective estimate of what kind of future on earth the victim might have enjoyed, whether or not the victim himself had justly estimated that future or not. Financial losses or gains during the lost years were to be disregarded, he said and added: 'The damages are in respect of loss of life, not of loss of future pecuniary prospects.'

Viscount Simon further said (p. 168): 'The truth, of course, is that in putting a money value on the prospective balance of happiness in years that the deceased might otherwise have lived, the jury or judge is attempting to equate incommensurables.' He reached 'the conclusion that in assessing damages under this head, whether in the case of a child or an adult, very moderate figures should be chosen.' His last comment on the determination of damages for the shortening of a plaintiff-victim's life was this: 'I trust that the views of this House, expressed in dealing with the present appeal, may help to set a lower standard of measurement than has hitherto prevailed for what is in fact incapable of being measured in coin of the realm with any approach to real accuracy.'

It appears that this admonition has been heeded, for a note entitled 'Assessment of Damages in Fatal Accidents', 100 L.J. 312, indicates that the English courts currently restrict the extent of damages for the shortening of life expectancy to small flat sums. On the basis of Benham v. Gambling, supra, and the note just referred to, it seems to us that the English authorities now support the appellant's contention more in theory than in fact. See Judge Wyzanski's Comment in O'Leary v. United States Lines Co., D.C.D.Mass.1953, 111 F.Supp. 745, 747, that the English rule 'has not proved to be entirely...