State, for Use of Bowman v. Wooleyhan Transp. Co.

• Decision Date: 31 March 1949
• Docket Number: 128.
• Parties: STATE, for Use of BOWMAN v. WOOLEYHAN TRANSP. CO.
• Court: Maryland Court of Appeals

65 A.2d 321

192 Md. 686

STATE, for Use of BOWMAN v. WOOLEYHAN TRANSP. CO.

No. 128.

Court of Appeals of Maryland

March 31, 1949

Appeal from Baltimore City Court; Michael J. Manley, Judge.

Suit by the State of Maryland for the use of Violet L. Bowman against Wooleyhan Transport Company, a body corporate, for negligent killing of Ruth Gertrude Freno, deceased. From a judgment for the defendant, plaintiff appeals.

Affirmed.

J. Lee Smith and Robert B. Kelm, both of Baltimore, for appellant.

Paul M Higinbothom and Paul R. Kach, both of Baltimore, for appellee.

Before DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS Judge.

This is a suit by the State of Maryland for the use of Violet L Bowman, appellant, against Wooleyhan Transport Company appellee, for damages sustained by the equitable plaintiff, Violet L. Bowman, on account of the negligent killing of her mother, Ruth Gertrude Freno, by an automobile tractor and trailer owned by the appellee and operated by its agents.

A suit brought by the administrator of the estate of Ruth Freno against the appellee here for pain and suffering alleged to have been sustained by the deceased and for funeral expenses was jointly tried with the case now before us. A judgment was recovered for the plaintiff for $300 and costs. This was paid and no appeal taken from that judgment and that case is not before us here.

The suit now before this Court was brought under Article 67, 1939 Code, entitled 'Negligence Causing Death'. These sections more or less follow the English statute, 9th and 10th Victoria, Chapter 93, known as Lord Campbell's Act.

The trial judge granted appellee's 'B' prayer 'that there is no legally sufficient evidence offered by the Equitable Plaintiff to warrant the Jury in finding that the said Equitable Plaintiff sustained any pecuniary loss, actual or in expectation, from the death of her mother, and the verdict, therefore, must be for the defendant.' The granting of this prayer is the primary question before us in this case.

The appellee contends that this question is not before us by reason of Subsections (c) and (d), of Rule 6. 'Instructions to the Jury', of the General Rules of Practice and Procedure, pt. 3, subd. 3, Code, 1947 Supplement, page 2051. Subsection (c) provides in part that before the jury retires to consider its verdict any party may object to any portion of any instruction given. An opportunity shall be given to make the objection out of the presence of the jury. Subsection (d) provides that upon appeal the party in assigning error in the instruction shall be restricted to the particular portion of the instruction distinctly objected to before the jury retires. The appellee contends that because no formal objection was made to the charge of the trial judge in court before he granted appellee's B prayer, supra, and withdrew the case from the jury the granting of that prayer is not reviewable by this Court. However, the record is accompanied by a certificate from the trial judge which states that after the close of the evidence and before the oral charge to the jury, the court and counsel for the parties retired to chambers to discuss the law of the case with regard to the written prayers filed by counsel. Among the prayers submitted was appellee's B prayer, supra. The court in chambers advised counsel that he intended to grant appellee's B prayer and to embody it in his charge to the jury. To this ruling the counsel for the appellant in chambers verbally objected on the ground that the evidence was legally sufficient. Thereupon the court resumed the bench and charged the jury. After the verdict was taken and at the suggestion of the court, appellant's counsel specially excepted to the directed verdict. The purpose of requiring the objection to any part of the charge to be presented to the trial judge before the jury retires is to give the trial judge an opportunity to amend or supplement his charge if he deems an amendment necessary. Fisher v. Baltimore Transit Co., 184 Md. 399, 402, 41 A.2d 297. In the case before us the trial judge certified that the particular objection was made to him before he granted the prayer and delivered the charge to the jury, which he overruled. He specifically had the benefit of that objection before the jury retired. The only thing out of order in this case was the failure to have the stenographer in chambers to take down the objection. This was later formally done at the suggestion and with the approval of the trial judge. Rule 6, Subsection (c) and (d), supra, did not contemplate the dismissal of an appeal under the circumstances in this case. The trial judge passed on the question, after objection, before the jury retired and the question is before us here.

In ruling on the demurrer prayer we will review the evidence in a manner most favorable to the appellant. The evidence shows that the equitable plaintiff, Violet L. Bowman, attended a public school in Baltimore for a period of two weeks. Being an albino, with poor eyesight she was transferred to Overlea School for the Blind, from which she graduated after an attendance of ten years. She was married in 1934. Her mother, the deceased in this case, 57 years of age at the time of her death, had not lived with the daughter since 1934. Mrs. Bowman at the time of her mother's death had two children, one twelve years of age and the other six years old. Her husband, Charles John Bowman, was a sign painter whose shop was in the block next to his home. The daughter testified that her mother visited her home every day and when the mother was not working at times she cleaned the house for her, cleaned windows, took care of the children, 'she took them places, when they had to go, she did washing, ironing for me, sewing and mending, and a lot of times she cooked for me and then she took me places, where it required going across the street or required taking buses or street cars or anything else that required sight.' The daughter testified that the mother worked regularly until November, 1946, mostly in canneries and packing houses. She claims that since her mother's death it has been necessary for her to hire a servant to perform the services the mother performed. The servant is paid $4.70 a day, two days a week, for working between the hours of nine and five. The daughter's sole support is from her husband who gives her the money with which she pays the servant. She says that on account of her financial circumstances it is impossible for her to employ the servant for more than two days a week and the servant does not render as much assistance to her as that furnished by her mother.

At the time of her death, in June, 1947, the mother was receiving funds from the welfare board and had received unemployment compensation all winter. The daughter claims that on account of her eyesight she could not clean well and could not fry fats. This had previously been done either by her mother or her husband. The daughter admits that shortly after her mother's death she freely and voluntarily signed the following statement which she had read and which at the trial below she said is correct. 'Statement of Mrs. Violet L. Bowman, wife of Charles Bowman. I have two children, Richard, age 12, Lavina, age 6. My husband is in the neon sign work and supports us. My mother, Ruth G. Freno, lived alone at 914 East Pratt Street. She was divorced from her husband, John Freno in Baltimore after the first war. For the past winter I had no help support my mother, I was the only child. She was on the welfare, too, only received one check. I would give her some food and once in a while I would give her a $1 and sometimes paid her rent $15 per month. I had not paid any rent for about 4 months. She did work last summer in a packing house, Footes, and Donevals I think. Her health was pretty good. She was 57 years of age. For the last winter, due to her age she had trouble getting work. The packing houses only open in the summer. Her eye sight and hearing was very good. This statement is true and correct.' She further testified that sometimes twice a week she gave her mother $1 or $2.

Of course, a demurrer prayer should not be granted if there is any testimony of sufficient probative force and any inferences of fact fairly deducible therefrom...