Riley v. Naylor
| Decision Date | 17 December 1940 |
| Docket Number | 6. |
| Parties | RILEY v. NAYLOR. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; J. Craig McLanahan, Judge.
Action of tort by Virginia Jane Riley, infant, by her parents and next friends, William T. Riley and Mabel E. Riley, against Nell R. Naylor for injuries sustained by the infant in a collision with defendant's automobile. From a judgment plaintiff appeals.
Appeal dismissed and judgment affirmed.
Leonard Weinberg and Louis Silberstein, both of Baltimore (Weinberg & Green and Everett L. Buckmaster, all of Baltimore, on the brief), for appellant.
Walter V. Harrison, of Baltimore, for appellee.
Argued before BOND, C.J., and PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.
Virginia Jane Riley, an infant of the age of fifteen years and her father were riding, on November 13th, 1938, in the automobile of a third party on their way to the office of Dr. Oliver F Blaker, a chiropractor, to have him recommend an oculist to examine the girl's eyes. The automobile was struck and the impact of the other automobile with which it was in collision threw the girl forward so that her head struck and broke the windshield. She was dazed by the blow and was nervous and hysterical when she was taken to Dr. Blaker's office. She complained of her back hurting and the doctor took an X-ray picture of her spine and massaged it. She then left for her home and was later treated for a spinal condition and for nervous and mental developments whose origin became a controversial issue.
On January 30th, 1939, an action in tort was brought in the name of the infant, by her father and mother as next friends, against Nell R. Naylor, the owner and operator of the other automobile, to recover damages alleged to have been sustained by the girl as a result of the defendant's negligence. The case was tried and the jury found for the plaintiff and fixed the damages at $750. The plaintiff filed a motion for a new trial, which was denied. A judgment was duly extended on the verdict for the plaintiff, and she has appealed from this judgment.
The errors assigned are three adverse rulings on the testimony, and one on the granting of the defendant's prayer on the measure of damages. The first bill of exceptions was to the refusal of the court to admit in evidence a paper writing on which was entered the result of an examination of the girl made by her teacher of music after the accident and several months before the trial of her action for damages. The record does not contain the paper writing and no proffer indicates its evidential quality, so the materiality of its contents does not sufficiently appear for this Court to pass upon whether, if admissible in form, its exclusion was prejudicial. The witness testified fully in reference to the girl's relative physical and mental condition and her musical aptitude and application before and after the injury. The memorandum was not produced to refresh his memory, and his independent recollection was the best testimony of what he knew. Under the circumstances, there was no error in the ruling.
2. The second exception is likewise without substance. The chiropractor to whom the girl was taken after the collision, was testifying to her condition and to his examination and immediate treatment, and he was asked in chief if she had made any complaints to him. This question was ruled objectionable and an exception was noted. Nevertheless the witness replied to the inquiry and stated what were the patient's complaints in his response to this and to other like interrogatories. So, the ruling excluded nothing of this import.
3. The third and final ruling on the testimony to which an exception is reserved occurred towards the close of the testimony of a specialist in nervous and mental diseases, who after an examination in September, 1939, expressed the opinion that the condition of the girl was not attributable to any physical trouble but to her nervous state. He was then subjected to a cross-examination which developed fully the reason for this opinion. The specialist said that she was in a condition that she could not face her problems, as the pending damage suit, with its worry, anxiety and uncertainty. At this stage, the cross-examination assumed this form:
'(Mr. Weinberg) May I look at the papers in this case--suit seems to have been brought by Mr. Silberstein for the father in this case on the 30th of January, 1939--certainly from the evidence in the case there is nothing to show her condition during November, December and January was due to any impending litigation, was there?'
The question was rightly rejected. Its form is objectionable. Its inaccuracy is not vital, but it is argumentative, and asserts positively the interlocutor's conception of the effect of all the evidence, and then asks the witness if the evidence shows anything to the contrary. Again, the witness knew nothing of the girl's condition during November, December and January, 1938-1939, and had not seen her until September, 1939. His example was in reference to the strain of the case on trial. Although it does not appear that the specialist had heard all the testimony, and, even if he had, he is improperly required to make a synthesis of all the evidence in the case, and then express his opinior as to what that testimony established in respect of a particular fact.
4. The plaintiff submitted three prayers at the close of the case and all were granted as presented. The defendant offered two prayers, and the court granted the second one, and the record is in a state of confusion with regard to the action taken on defendant's first instruction. At the foot of this first prayer, there is endorsed 'Not ruled on'. Novertheless, after all the prayers are incorporated in the record with the notation 'granted' on all, except the defendant's first prayer, there appears this statement: 'The Court granted the plaintiff's 1, 2 and 3 prayers and the defendant's 1 and 2 prayers.' Counsel agreed that the bills of exceptions are true and correct, subject to the verification by the Clerk of the prayers, and the court signed the statement: 'The foregoing Bill of Exceptions approved this 10th day of April, 1940.'
Defendant's second prayer is on the burden of proof and is not a matter of contention, so whether the court approved or did not rule on this prayer is immaterial, as whether granted or rejected the plaintiff was not hurt.
The parties have prepared their briefs on the assumption that an exception was reserved to the action of the court in granting the defendant's second prayer. There is, however, no exception reserved to the ruling of the court on this prayer and the court cannot consider an objection now. Poe's Practice, Tiffany Ed., §§ 317, 319; Nichols v. Meyer, 139 Md. 450, 456, 115 A. 786.
It may be said that the prayers granted on the part of the plaintiff put her case adequately with reference to the right of recovery and the measure of damages. The prayer on damages instructed the jury that in estimating the damages the jury should consider the health and condition of the plaintiff before the injuries complained of in comparison with her subsequent condition in consequence of said injuries, and also the physical and mental suffering to which she has been subjected by reason of these injuries; and that the jury should find such damages as in its opinion will be fair and just compensation for the injuries which the jury may find she has sustained. Baltimore City Pass. Ry. Co. v. Kemp, 61 Md. 74; Epstein v. Ruppert, 129 Md. 432, 440, 99 A. 685; Washington, etc., Co. v. Sullivan, 136 Md. 202, 205, 110 A. 478; East Baltimore Transfer Co. v. Goeb, 140 Md. 534, 535, 118 A. 74; Brown v. Patterson, 141 Md. 293, 118 A. 653; Ottenheimer v. Molohan, 146 Md. 175, 183, 126 A. 97.
The prayer is of standard form and is comprehensive and inclusive of all the elements which should enter into the estimate of damages recoverable. While the accent is on the variety and scope of the elements that may be considered, the prayer...
To continue reading
Request your trial