Washington, B. & A. Elec. R. Co. v. Kimmey

Decision Date21 June 1922
Docket Number23.
CitationWashington, B. & A. Elec. R. Co. v. Kimmey, 141 Md. 243, 118 A. 648 (Md. 1922)
PartiesWASHINGTON, B. & A. ELECTRIC R. CO. v. KIMMEY.
CourtMaryland Court of Appeals

Motion for Modification Overruled Oct. 6, 1922.

Appeal from Circuit Court, Prince George's County; Fillmore Beall and B. Harris Camalier, Judges.

Action by Helen R. Kimmey against the Washington, Baltimore & Annapolis Electric Railroad Company.From a judgment for plaintiff, defendant appeals.Reversed and remanded.

Argued before BOYD, C.J., and BRISCOE, PATTISON, URNER, STOCKBRIDGEADKINS, and OFFUTT, JJ.

George Weems Williams, of Baltimore (T. Van Clagett, of Upper Marlboro, and Marbury, Gosnell & Williams and Edwin F. A Morgan, all of Baltimore, on the brief), for appellant.

Clarence M. Roberts and M. Hampton Magruder, both of Upper Marlboro for appellee.

URNER J.

The derailment, in July, 1919, of a car of the defendant, in which the plaintiff was a passenger, resulted in an injury to the side of her body, which is claimed to have produced frequently recurring uterine hemorrhages.Upon the theory that this physical condition, to which the plaintiff was proved to be subject, was attributable to the shock and injury sustained in the accident, she was awarded $13,500, in October, 1921, by the verdict of a jury in her suit against the defendant for damages.The appeal from the judgment entered on the verdict requires us to review rulings on certain exceptions which are concerned solely with questions relating to the real nature and effect of the plaintiff's injuries.

There are 18 exceptions in the record.The first, sixth, and tenth are not pressed.The second, third, fourth, and fifth refer to testimony of the plaintiff as to her medical and hospital expenses.With the aid of a memorandum, which she was permitted to use for the purpose of refreshing her memory, she testified to the following charges: For her room in the hospital, $216.80; for doctors' services, $881; and for medicines, $190.No evidence was offered in regard to these bills, except the plaintiff's statement as to the total amounts incurred "since the accident," and as to the fact that the doctors' bills had not been paid.The objection is that the testimony afforded the jury no means of determining whether or not the expenses sought to be recovered were reasonable and were wholly due to the injuries described in the declaration.The evidence on the subject was undoubtedly too general.It presented no details whatever as to the various charges for which the defendant was proposed to be made liable.There should have been a reasonable degree of particularity in the proof of the substantial expenses included in the plaintiff's claim, and the objection to the testimony on the subject was well founded.

The seventh and eleventh exceptions were taken because certain hypothetical questions, as to the cause of the plaintiff's present condition, were allowed to be asked and answered.The physicians to whom the questions were propounded had examined and treated the plaintiff at periods beginning more than 18 months after the accident, and their opinion as to the cause of the hemorrhages from which she suffered was requested upon the basis of their observations and of the testimony attempted to be summarized in the interrogatories.There was reasonable ground of objection to the statement of the hypotheses upon which, in part, the physicians were asked for their opinions.The questions described generally the plaintiff's injuries as being "severe," and as having been shortly followed by hemorrhages, which have since occurred "almost continually" and for periods lasting sometimes as long as two weeks.This statement tended, without design, but in actual effect, to exaggerate the real conditions.There was an omission to mention the fact that the plaintiff was able to leave the hospital 4 days after the accident and to resume her regular work as a stenographer about 6 weeks later.This circumstance might not have affected the opinions expressed that the hemorrhages were caused by the injuries received in the accident, but the interrogatories by which the opinions were elicited should have stated more fully and conservatively the testimony upon which they were to be partly founded.The rule as to the proper form and elements of hypothetical questions was not sufficiently observed.N. C. Railway Co. v. Green,112 Md. 487, 76 A. 90;Miller v. Leib,109 Md. 414, 72 A. 466;Grill v. O'Dell,113 Md. 625, 77 A. 984.

The subject of the eighth and ninth exceptions was the admission of the following testimony of one of the plaintiff's physicians:

"Q.Doctor, what organs of the body would be affected in this patient, assuming that there was a second operation to remove the existing trouble?A.Ovary.
Q.Will you be good enough to tell the court and jury the effect of the removal of the ovaries on the question of bearing children?A.The effect of the removal of both ovaries, of course, produces sterility."

According to the testimony, only one of the plaintiff's ovaries was affected, and the necessity for its removal could not be determined without an operation.There was no occasion for the admission of evidence which suggested a future condition of sterility, to be produced by the removal of both ovaries, as one of the consequences of the plaintiff's injury for which the defendant was to be held responsible.

No reversible error is apparent in the rulings on the twelfth, thirteenth, and fourteenth exceptions, and no point was made of them in the argument.

The fifteenth exception questions the propriety of the reference in the plaintiff's prayer to the medical expenses, but in view of the admitted evidence on that subject we think the objection was properly overruled.

The most important question in the case is raised by the sixteenth exception.On the day of the rendition of the verdict a motion for a new trial was filed by the defendant.At the hearings on the motion, which began about two months later, affidavits were filed and evidence was adduced tending very strongly to show that the condition to which the plaintiff's claim for damages mainly referred was not the result of the accident on account of which the suit was brought, but had existed long before its occurrence.The plaintiff had testified at the trial that before the accident she was in perfect health.The depositions in support of the motion for a new trial were directly to the contrary.One was by a woman who occupied a room with the plaintiff in May and June preceding the accident, and who stated that the plaintiff was then in delicate health and "menstruated constantly and profusely."This affiant quoted the plaintiff as saying that she had received injuries, from which she had never recovered, by the collapse of a building, in Albany, N. Y., in which she had been employed.Another affidavit was by a matron in charge of the barracks in which the plaintiff was living at Camp Meade, where she was serving as a stenographer at the period of the accident which occasioned this suit.The matron deposed that the plaintiff was previously delicate, and freely discussed the severe injuries she had received in Albany, from which she had not, as she said, fully recovered.A member of the firm in Albany in whose service the plaintiff is said to have been formerly engaged made affidavit to the effect that his firm in 1909 paid $3,000 in settlement of a suit by Ella R. Kemmy(the present suit being brought in the name of Helen R. Kimmey), for injuries she suffered by the collapse of the building in which she was employed, and he produced a copy of the complaint, stating her cause of the action at that time, in which her injuries were characterized as serious and permanent.

A specialist in diseases of women, who treated the plaintiff at her home in Albany during a period of several months beginning in February, 1920, deposed that his examination was negative, except for secondary anaemia, resulting from uterine bleeding, which was apparently due to an overgrowth of the lining of the uterus, and not to any injuries sustained in the accident in Maryland which she described.The ovaries, he said, were then normal in size and consistency.A Washington physician testified in person, at a further hearing on the motion for a new trial, that he treated the plaintiff in March, 1919, 4 or 5 months before the accident, for excessive bleeding from the womb.He was told by the plaintiff, he said, that from May, 1918, to the following January "she bled practically on and off all the time," and from January, 1919, to the time of his treatment, "she bled excessively from 8 to 10 days every month."The defendant also offered evidence, at the hearings on the motion, explaining its failure and inability to discover and procure, in time for use at the trial, the testimony subsequently produced.

At the time of the presentation, in open court, of the depositions we have mentioned, no objection was made to them on the ground about to be noticed....

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex
56 cases
  • Barton v. State
    • United States
    • Court of Special Appeals of Maryland
    • Noviembre 21, 2016
    ...competent to be considered, and not previously discoverable by due diligence, supported the conclusion that the jury were misled as to the principal part of their award.Buck, 328 Md. at 58 (quoting Washington, B. & A. Elec. R. Co. v. Kimmey, 141 Md. 243, 250 (1922)). Accordingly, "a trial judge has virtually no 'discretion' to refuse to consider newly discovered evidence that bears directly on the question of whether a new trial should be granted." Id. In the...
  • DeTunno v. Shull
    • United States
    • Ohio Supreme Court
    • Mayo 15, 1957
    ...(1936), 187 Wash., 516, 60 P. (2d), 679, which holds that proof of payment of medical expenses is not enough, but that there must be proof of the reasonableness of the charges or expenses. In the case of Washington, Baltimore & Annapolis Electric Rd. Co. v. Kimmey (1922), 141 Md., 343, 118 A., 648, where facts comparable to those in the instant case are discussed, the court “* * * No evidence was offered in regard to these bills except the plaintiff’s statement as to the total...
  • Thodos v. Bland
    • United States
    • Court of Special Appeals of Maryland
    • Septiembre 01, 1987
    ...reviewable on appeal, see, e.g., Cong. School v. Roads Commission, 218 Md. 236, 254, 146 A.2d 558 (1958), or that such a ruling is not appealable. See e.g., Waters v. Waters, 26 Md. at 73-74. But see Wash., B. & A.R. Co. v. Kimmey, 141 Md. 243, 118 A. 648 (1922). (The refusal to grant a motion for new trial without having considered the evidence offered in support of the motion is reviewable.) Logically, these holdings would appear to be imprecise since, in orderwell as a compelling circumstance. Furthermore, the denial of the motion may also constitute the denial to appellant of a substantial right, i.e., the opportunity for a just resolution of her claim. See Kimmey, 141 Md. at 250-53, 118 A. 648. In any event, the potential that appellant will be materially prejudiced by the refusal of a new trial is great. See Wernsing, 298 Md. at 420, 470 A.2d 802. The question remains, whether the trial court abused its discretion. This determination...
  • Merritt v. State
    • United States
    • Maryland Court of Appeals
    • Diciembre 05, 2001
    ...is left by law to their discretion, ... it has been adjudged that a writ of error will not lie." See, e.g., Marine Ins. Co. v. Hodgson, supra, 10 U.S. 206, 6 Cranch at 217-218, 3 L.Ed. at 203-204; Wash., B. & A. Railroad Co. v. Kimmey, 141 Md. 243, 251, 118 A. 648, 651 (1922) (referring to the "`rule that a discretionary ruling is not reviewable on An exception to the principle that rulings on motions for new trials were not reviewable on appeal was first discussed by this Court in58-59,612 A.2d at 1298): "On the other hand, a trial judge has virtually no `discretion' to refuse to consider newly discovered evidence that bears directly on the question of whether a new trial should be granted. See Wash., B. & A. R. Co. v. Kimmey, supra, 141 Md. at 250, 118 A. 648 (`discretion could not be characterized as sound which wholly disregarded evidence by which its exercise should have been aided'). See also Browne v. Browne, 22 Md. 103, 112 (1864). And, ife.g., B.J. Linthicum's Sons v. Stack, 213 Md. 344, 347, 131 A.2d 721, 723 (1957) ("The only exception to the rule [of non-reviewability] ... was dealt with as an abuse of discretion. See Wash., B. & A. R. Co. v. Kimmey, 141 Md. 243, 118 A. 648"). For the next twenty-five years after the B.J. Linthicum's Sons case, some of this Court's opinions would state without qualification that discretionary rulings on new trial motions were not reviewable, whereas other opinions...
  • Get Started for Free