Tri-State Poultry Co-op., Inc. v. Carey

• Decision Date: 17 March 1948
• Docket Number: 97.
• Parties: TRI-STATE POULTRY COOPERATIVE, Inc., et al. v. CAREY.
• Court: Maryland Court of Appeals

57 A.2d 812

190 Md. 116

TRI-STATE POULTRY COOPERATIVE, Inc., et al. v. CAREY.

No. 97.

Court of Appeals of Maryland

March 17, 1948

Appeal from Circuit Court, Dorchester County; W. Laird Henry, Chief Judge, and Levin C. Bailey, Judge.

Action by Sula H. Carey, administratrix of Orrick J. Carey deceased, late of Somerset County, Md., against the TriState Poultry Cooperative, Inc., and another, to recover for funeral expenses and pain and suffering endured by deceased from time of accident until death. Judgment for plaintiff and defendants appeal.

Affirmed.

Fred W. C. Webb, of Salisbury, (E. Dale Adkins, of Salisbury, and V. Calvin Trice, of Cambridge, on the brief), for appellants.

Stanley G. Robins, of Salisbury, (Emerson C. Harrington, of Cambridge, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

GRASON Judge.

The appellants (defendants below) appeal from a judgment entered in the Circuit Court for Dorchester County against them in favor of Sula H. Carey, administratrix of Orrick J. Carey deceased (plaintiff below).

The corporate appellant is engaged in business at Salisbury, Maryland. It employs a number of people who live some distance from that city. The individual appellant, Charles Norman White, is employed by the corporate appellant.

On May 31, 1946, White, driving a bus belonging to the corporate appellant, drove a number of its employees to their respective homes, at the conclusion of the days' work. After returning these people to their homes, he was returning to Salisbury from Mt.Vernon when the accident, out of which this case arose, happened. White was traveling westerly on the Mt. Vernon Road. That road intersects a State highway, which runs north and south. It is a boulevard. At the northwest corner of this intersection there is a filling station, which faces east. Parked at the southwest corner of the intersection, on the Mr. Vernon Road, was a car belonging to a colored man by the name of Burke. As White approached this intersection the bus made an arc, running from the south side of Mt. Vernon Road, across the road, and came to rest at the side of the filling station. At the time Orrick J. Carey, the deceased, was about to get on his bicycle to return home. He worked at the filling station. As this bus, driven by White, swung across the Mr. Vernon Road, it struck Carey.

Witnesses to the accident immediately ran over to Carey. He was injured at the base of his skull and bleeding from the mouth. He was immediately lifted into Burke's car and taken to Dr. Whaley, in Princess Anne, which is about a mile from the scene of the accident. He was put on the back seat of the car and Mr. Muir sat on the seat with him. As he was lifted into the car Carey 'moaned and groaned' and his 'Adam's Apple moved up and down'. When they arrived at Dr. Whaley's office the doctor came out to the car. Carey was slumped down in the seat, and in order to examine him Dr. Whaley and Mr. Muir lifted him up, and Carey 'moaned and groaned'. The doctor administered morphine and ordered him to be immediately taken to the hospital at Salisbury. On the road to Salisbury Carey made no sound. He died about half past ten o'clock that might.

This suit was instituted by the personal representative of Carey to recover for funeral expenses and the pain and suffering he endured from the time of the accident until his death. Code 1939, art. 93, § 109.

Dr. Whaley testified: 'Mr. Carey was in a slouched position on the back seat of Mr. Muir's car, and he was moaning. We pulled him up to get him in what I thought would be a better position, more in a sitting position, so as to have his head elevated. * * * When we would move him he did considerable groaning, and I administered some morphine to him and sent him immediately to the hospital.' When asked if Carey, at that time, 'was conscious to such a degree that he was suffering pain?' he answered: 'I would say yes. I don't think he was totally conscious. He did not answer his name. But I do think he was conscious enough to elicit pain.' The doctor stated that he administered morphine 'for pain and to prevent shock.' This examination of Carey by Dr. Whaley was made around 9 p. m. About forty-five minutes later he saw him at the hospital, and Carey died 'as a result of these injuries.' He further stated: 'It was my conclusion that he had a fractured skull and fractured ribs'. On cross-examination the doctor said: 'I think he was bleeding from his ear' and 'usually with a fractured skull you have bruises and contusions of the brain' and 'a brain injury tends to produce unconsciousness.' He further testified that the fact a man is groaning doesn't necessarily mean he is conscious. He was asked: 'You don't mean to tell this Jury definitely and positively that Mr. Carey was conscious at the time you saw him, do you? A. Well, I felt that in the process of helping Mr. Carey up he gave out more groans and so forth, I thought probably he was conscious to more pain. That was my reason for saying he was conscious of some pain. Q. But you have already told me the eliciting of those groans did not necessarily carry with it consciousness? A. No, sir; you can hear people groan that are totally unconscious.'

Herbert A. Holland, Jr., operated a filling station at the corner opposite the filling station at which Carey worked. He said he heard the roar of the motor of the bus that White operated. He was standing outside of his filling station and saw the bus. He stated: 'The truck evidently couldn't stop for some reason. * * * He made this left turn up into the filling station and hit Mr. Carey, * * *' who 'was standing in front of the doorway in front of the filling station, just off of the concrete sidewalk.' He said the filling station faced 'toward Route 13', which runs from Princess Anne to Salisbury. As soon as Mr. Carey was hit the witness 'ran across there to him'. Carey was 'laying flat on his back with the bicycle on top of him.' He helped to put Carey in Burke's car and said Carey was 'moaning and groaning'. 'Q. What about choking or blood running from his mouth? A. Yes, sir. Q. Tell the jury what you observed there? A. Seemed like his Adam's Apple was jumping up and down, and blood was coming out of his mouth.' He further testified that he did not hear Carey say anything, and he did not know whether he was conscious or unconscious.

Douglas Simpkins, Jr., testified that he saw the accident, and said: 'He (Carey) was moaning quite a bit while we were handling him'.

Edward B. Muir testified he lives near the intersection and knew Mr. Carey. He got to the scene of the accident when they had Mr. Carey in the car and 'Mr. Simpkins and I completed putting him in the car--placing him in the car, rather. * * * He moaned and groaned. * * * He groaned more when he was handled.' After Carey was administered morphine by Dr. Whaley the witness did not hear any more moaning and groaning from him. Carey did not speak after the accident. Mr. Muir thinks that they arrived at the hospital between thirty and thirty-five minutes after they left the scene of the accident.

It is admitted that White was the agent of the corporate appellant and was in the course of his employment by it at the time the accident involved in this case occurred. At the trial of the case the only question argued by the attorney for the appellants was whether Carey suffered conscious pain from the time of the accident until he died. The question of primary negligence was not argued, and we take it that it was abandoned by the appellants. We will not, therefore, discuss that question, except to say that after a study of the record we are of opinion that there was legally sufficient evidence to justify the submission of the question of primary negligence to the jury.

The appellants contend: 1. That there was no legally sufficient evidence to show that Carey suffered conscious pain from the time that he was injured (about 9 p. m.) until he died (at 10:45 p. m.), to submit to the jury. 2. That Carey was mortally injured, and that any pain he suffered was incident to dying, and that a rule stated by the Supreme Court in Cases arising our of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., should be adopted by this court.

On the first point we will consider the cases to which we have been referred.

In Royal Indemnity Co. v. Pittsfield Electric Co., 293 Mass. 4, 199 N.E. 69, 71, the court said: 'Continuance of life after a personal injury, though not continuance of consciousness, is necessary to the existence and survival of a cause of action for the injury; but to permit the assessment of damages for bodily mutilation or physical or mental suffering there must have been pain or at least consciousness of injury. * * * A very brief period of life between injury and death will enable the cause of action to accrue and therefore to survive, and will give time for conscious suffering for which damages may be assessed. * * * This court has never adopted the doctrine that a dying man can acquire no right to damages for the suffering which is incidental to his death.'

In that case the deceased was electrocuted. He uttered a scream or two cries about a second apart. The court said: 'We do not think that common knowledge would enable a jury to say * * * that the sound indicated the continuance of life or conscious suffering, rather than the mechanical expulsion of sir by spasmodic muscular contraction caused by the shock.' Recovery was denied in that case.

In Melnik v. Perwak, 295 Mass. 512, 4 N.E.2d 329, the medical examiner testified that there was no conscious suffering. There was no recovery.

In Covell v. Colburn et al., 308 Mich. 240, 13 N.W.2d 275,...