Sun Cab Co. v. Walston

• Decision Date: 17 April 1972
• Docket Number: Nos. 542,542B,s. 542
• Citation: 15 Md.App. 113,289 A.2d 804
• Parties: SUN CAB COMPANY, Inc., et al. v. Richard B. WALSTON, etc., et al. Curtis Lee ASH v. John R. JEWELL.
• Court: Court of Special Appeals of Maryland

Page 113

15 Md.App. 113

289 A.2d 804

SUN CAB COMPANY, Inc., et al. v. Richard B. WALSTON, etc., et al.

Curtis Lee ASH v. John R. JEWELL.

Nos. 542A, 542B.

Court of Special Appeals of Maryland.

April 17, 1972.

No. 542 A & B:

Matthew Swerdloff and Edward P. Murphy, Baltimore, with whom were Jay E. Levy, Allan B. Rabineau, and Swerdloff, Rabineau & Murphy, Baltimore, on the brief, for appellant.

No. 542-A:

Melvin J. Sykes, Baltimore, with whom were Richard T. Rombro, Joseph H. Omansky, and Wartzman, Rombro, Rudd & Omansky, Baltimore, on the brief, for appellees.

No. 542-B:

J. Edward Martin, Jr., Baltimore, with whom were Donald C. Allen, and Allen, Thieblot & Alexander, Baltimore, on the brief, for appellee.

Argued before MURPHY, C. J., and MORTON, ORTH, THOMPSON, and POWERS, JJ.

POWERS, Judge.

A few minutes after 1:00 P.M. on July 28, 1967, Mrs. Dorothy A. Walston entered a taxicab owned by Sun Cab Co., Inc. and operated by Curtis Lee Ash, on Edmondson Avenue, in Baltimore. The cab headed east. About 300 feet east of Hilton Street, at a point where a raised concrete median strip divided Edmondson Avenue, to separate eastbound and westbound traffic, the cab crossed the median strip and collided with a westbound truck, operated by its owner, Wilton Ernest Moore. His 17 year old son, James Moore, was a passenger in the truck.

Mrs. Walston was killed. Mr. Ash and both of the Moores were injured.

Suit claiming damages for wrongful death was filed against Sun Cab and Ash by Richard B. Walston, surviving husband of Dorothy Walston, and by her six children whose ages at the time of her death ranged from just under three to not quite twelve. A claim by Mr. Walston as Administrator was included. Mr. Moore and his son in separate cases sued Sun Cab and Ash. In the son's case, Mr. Moore was next friend, and individually asserted his derivative claim. Mr. Ash, with leave of court, sued the Commissioner of Motor Vehicles, and by later amendment, added the Unsatisfied Claim and Judgment Fund Board, as stand-ins for an unidentified driver of another vehicle alleged to have been involved.

The four cases were consolidated, and tried before a jury and Judge Joseph C. Howard in the Superior Court of Baltimore City. Trial began on February 9, 1971, and was concluded with the jury's verdicts on February 23, 1971. In the suit of the Walstons against Sun Cab and Ash the verdict was for the plaintiffs. Damages were assessed in favor of the Administrator at $1,000.00; in favor of the surviving husband at $125,000.00; and in favor of the six children at $100,000.00 each. In the suit of Ash against the Unsatisfied Claim and Judgment Fund Board the verdict was for the defendant. In the suit of Wilton E. Moore against Sun Cab and Ash the verdict was for the plaintiff and damages were assessed at $14,500.00. In the suit of James Moore against Sun Cab and Ash the verdict was for the plaintiffs. Damages were assessed at $1,500.00 for James Moore, and at $205.00 for his father's derivative claim.

Upon denial of motions for new trial and in arrest of judgment on July 30, 1971, judgments were entered in accordance with the verdicts. Sun Cab and Ash appealed from all judgments and from the order denying their motions in arrest of judgment.

We shall affirm the judgments in favor of Richard B. Walston, Administrator, the Unsatisfied Claim and Judgment Fund Board, Wilton E. Moore, and James Moore. The judgment in the wrongful death claim of the serviving members of the Walston family will be affirmed as to liability, but will be reversed in part, and remanded for a new trial on the question of damages.

Briefs filed in this Court by the various parties aggregate 257 pages. We allowed a total of four hours for oral argument. More than twenty contentions must be considered and decided. We shall recite additional facts as they are appropriate to the points being discussed.

Since our partial reversal is based upon an error in the damage instructions, we shall discuss that point first.

Present Value of Future Losses As Damages in Wrongful Death Cases

'The General Assembly of this State, in the year 1852, finding the common law maxim, 'Personal actions die with the person', unsuited to the circumstances and condition of the people, enacted a law entitled 'An Act to compensate the families of persons killed by the wrongful act, neglect, or default of another person.''

So said Chief Justice Bowie for the Court of Appeals in 1866 in the case of State, to Use of Coughlan v. B. & O. R. R. Co., 24 Md. 84, at page 100. The act referred to, Laws of Maryland, 1852, ch 299, patterned after Lord Campbell's Act in England, created a cause of action which did not exist at common law, designated the class of persons who could assert the cause of action, and provided that '* * * the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought * * *'. ¹

In Coughlan the Court of Appeals for the first time considered the measure of damages 'proportioned to the injury resulting from such death' as provided for in the act. The appellant there, the mother of a minor son killed by a railroad car, objected to the damage instruction given by the trial judge because it confined her claim to pecuniary damages, and limited the pecuniary loss to the minority of the child. The Court compared and weighed the reasoning of the authorities, English and American, and found no error in the rulings of the court below.

At the same term, the Court in B. & O. R. R. Co. v. State, to Use of Kelly, 24 Md. 271, noted that 'punitive damages are not recoverable in such a case as this, under the Act of 1852', and went on to say, at page 281:

"It has been held, that these damages are not to be given as a solatium, but are to be given in reference to a pecuniary loss. It is also clear, that the damages are not to be given merely in reference to the loss of a legal right, for they are to be distributed among relations only, and not to all individuals sustaining such a loss. If then the damages are not to be calculated on either of these principles, nothing remains, except that they should be calculated in reference to a reasonable expectation of a pecuniary benefit, as of right or otherwise, from the continuance of the life.' In Dalton v. R. R. Co., 93 Eng.C.L. 296, it was said 'that the reasonable expectation of pecuniary advantage by the relation remaining alive, may be taken into account by the jury, and damages may be given in respect of that expectation being disappointed, and the probable pecuniary loss thereby occasioned."

The measure of damages was articulated in more detail in a prayer approved by the Court in B. & O. R. Co. v. State to Use of Trainor, 33 Md. 542 (1871) as follows:

'If, under the instructions of the court, the jury should find for the plaintiff, then, in assessing the damages, they are to estimate the reasonable probabilities of the life of the deceased, Trainor, and give the equitable plaintiffs such pecuniary damages, not only for past losses, but for such prospective damages as the jury may find that they have suffered, or will suffer, as the direct consequence of the death of the said Trainor; that for his children, these prospective damages may be estimated to their majority, and as to the widow, to such probability of life as the jury may find reasonable under the circumstances.'

Instructions embodying the same principle were approved by the Court in B. & O. R. Co. v. State, to Use of Woodward, 41 Md. 268 (1875), Philadelphia, W. & B. R. R. Co. v. State, to Use of Bitzer, 58 Md. 372 (1882), Pikesville, etc. R. Co. v. State, to Use of Russell, 88 Md. 563, 42 A. 214 (1898), and many other cases.

A refinement of the stated measure of damages was made by the Court of Appeals in President, etc., of Baltimore & Reisterstown Tnpk. Road v. State, 71 Md. 573, at page 584, 18 A. 884, at page 887 (1889), when it approved a similar prayer, but said:

'Although not perhaps as explicit as it might be, yet fairly interpreted it means, as we understand it, that in estimating the prospective damages to the widow, the jury are to take into consideration the reasonable probabilities of her life and the life or her husband, or, in other words, the probable duration of their joint lives. And as no objection was made to the instruction in this respect in the cases above referred to, nor any in the one now before us, we must assume the jury so understood it. It may be proper, however, to say, that in order to prevent any misunderstanding in regard to the matter in the future, it would be better and safer to say that in estimating the prospective damages to the widow the jury were to take into consideration the probable duration of their joint lives.'

It was inevitable that the bench and the bar would develop as a further refinement, that damages to be realized periodically over a given period of future time, should be reduced to present value. Strangely, the principle seems to have crept into the law by common acceptance, for the Court of Appeals has never had occasion to the squarely upon it. The earliest indication of its consideration is found in Consol. Gas, Electric Light & Power Co. v. State, to Use of Smith, 109 Md. 186, 72 A. 651 (1909), where the Court used the present value rule to test the prejudicial effect of evidence, admitted over objection, that the widow had no property or means of support. The Court said, 'The admission of such testimony is therefore irrelevant, in any case, and must tend to prejudice one of the parties in any event.' But the Court went on to say, at pages 206 and 207, 72 A. at page 659:

'But in the case before us the jury has very clearly successfuly resisted the apprehended appeal to their sympathy, and have not permitted themselves to go beyond moderate compensation. The uncontradicted proof is that...