*1 must assume the truth of all court the evidence be- defense, fore the to sustain the claim or jury, tending be, the case and of all may inferences of fact deducible from it.” fairly Co., Sup. 183 Md. v. Carroll-Howard 37 A.
State 330, Mayor also Council v. (1944). City 2d See Bas- sett, 104 Atl. 132 Md. 39 (1918). evidence in this case conflicting presented sev-
Since factual instances with to which the respect eral minds of differ, men could the weight and value of such reasonable for the were left consideration of the properly evidence jury. below, no error we will affirm the Having judgment. found appellant Judgment affirmed, pay the costs. v. HIGGS et
HARPER vir Term, 191, September I960.] [No. *4 April
Decided 1961. Motion rehearing May denied May filed 1961. The cause was argued before Bruñe, C. J., Hender- Marbury
son, Hammond, Sybert, JJ. John Burnett, W. T. King Webb and K. with whom were brief, Webb Travers on & for the appellant. FitzGerald, James F. with whom were Walter D. Webster brief, and FitzGerald & FitzGerald on the for the appellees, the plaintiffs.
Hammond, J., delivered the opinion of the Court. If Conan Doyle had written this chapter Maryland he Reports, might have called it “The Case of the Completely Inattentive Women Drivers.” The principal legal question presented is whether should have been allowed to find out for they themselves a real (as were) culprit in the case, automobile accident or whether the judge should *5 ended, matter of as a story and them how the told peeked law. wife, The wife. a and were husband
The below plaintiffs side a entered from Mrs. a in a car which Higgs, passenger main a car on with crushing and came contact road into driver, impleaded road, who Harper, Mrs. sued favored was car, The case Hurry. Mrs. driver of the unfavored negligence primary on to: (1) submitted issues as dam- and Hurry; (3) negligence Harper; (2) primary but Harper for refused to direct a verdict ages. court found The jury negligent. instructed the to find jury Hurry damages assessed and negligent also had been Harper Mr. $12,500 because $25,000, court reduced which the with in conformity and released Higgs Hurry Mrs. had motion Act. Harper’s Tortfeasors Among Contribution Joint she appealed and judgment for n. o. v. was denied di- that a should have been judgment, claiming final verdict favor, charge jury rected in her error in the to the there was to allow testi- prejudice expert the court’s refusal other, and per as to struck the so-called mony which car damages diem or mathematical formula how argument made to for be which was pain suffering may computed improper. sister-in-law, Mrs. Mrs. Hurry driving Higgs, her County a Mr. Brooks in her Chevrolet from Mary’s St. lost City. got to Ocean and found themselves in Wico- They Road, mico north on County driving the Willard-Powellville 354, 50, boulevard, Route crosses Route which at Willards. Meanwhile, then in an Mrs. a hostess Harper, City Ocean room, dining hotel on Route coming west her driving waitresses daughter Salisbury three in her shop, 1951 DeSoto.
A blinker light, suspended over the center directly intersection of Routes 50 and flashed for boule- yellow traffic for traffic on vard and red Route 354. were There traffic stop signs Route 354 at the southeast and north- corners. west Hurry’s was that as she testimony approached
intersection “There blinker was a red on I And stopped. me. *6 as I to got started I pull away about the middle of the off, and carmy cut and I was to start the trying car. And that is all I remember.” see She did not the Harper car I to “Because was start car.” trying my did not She know what “other than happened there I and started stopped again.” Brooks,
Mr. on the who was seated next Hurry to Mrs. seat, front said from there. sign the stand: “There stop was a Mrs. to across Hurry stopped go her And she proceeded car. road, and and her light under the blinker practically got motor, motor went dead. And in I trying to start this sup- seconds, it pose just was a that auto- my right few on this * * * mobile was on were right top thought they us.” He stalled under the traffic for or a five seconds little light that longer and “while was this trying she to start car it eased ahead a little bit.” As Mrs. across Route Hurry started Brooks, after having on stopped, Mr. beside her the front seat, both looked “There was ways nothing coming and either * ** way at that time noticed both I 'there was ways nothing coming at that time that particular stopped we there at that stop-sign.” car,
One of the in Mrs. was sit- passengers who Harper’s back, ting in the testified that Mrs. at a con- drove Harper stant speed an and the car’s thirty-five forty miles hour speed did not decrease intersection. they approached Before got there she saw the they approaching car Hurry “and it going was at a that I didn’t think it was speed going intersection; so, to slow down I forward on leaned the seat to warn Mrs. Harper everyone talking, was * * * I was waiting to a sound I looked get again when * * * the car us. our coming right was It hit on left-hand side the front back girls between door.” The car talking were about beauty parlor a a little bit to the east of the' intersection because the mother of one of the waitresses worked with owned it. leaned they When witness forward car, to warn of the other Mrs. to Harper talking some- one. get “waited second” to her warning She “in.” She Harper Mrs. person did to see whether not look “really” look- “I was because to answer talking going to was worrying Because car was at. ing see where the going it’s stop; going me. I is not hollered ‘the car hit.” and we hit And hollered ‘Where?’ us’. Mrs. Harper an miles fifty under driving she was said Harper down slowed light she the blinker hour and as she approached “com- car the Hurry saw know. —how much she did She stop.” it would “thought intersection” ing through the other saw she first that when times reiterated several She through “almost it was through,” “it was moving car in the it it was first saw she and that when the intersection” “the thought in the middle.” She right intersection but “not her brakes applied car in front.” other car struck She my hand.” “pull slightly my and did *7 been to have of impact the point A found policeman State in the west- line of Route center seven feet north of the the Harper feet and car travelled bound lane. The Hurry no marks. skid There were 20 feet impact. car after the the on verdict was directed motion for a Harper’s any she violate nor omission did act theory neither on a boule- a driver on obligation imposes or the law duty been have theory and its underlying vard. The law applicable Hook, 177 v. stated and restated times since may Greenfeld A 116, 125, 130, in them 1939. elaborately Md. articulated and onto a boulevard motorist must before he drives stop their during pas- the of to vehicles thereon yield right way rights The of travellers sage the intersection. relative past to two roads are not to be held intersecting depend on the the ob- on nice calculations of time and distance lest speed, rule and essential of the boulevard to accele- purposes vious at the through highway per- rate the flow of traffic over the speed, interruption, mitted without be frustrated. favored stop driver has a to assume the unfavored driver will right instances, therefore, of and in most right and the yield passage driver does not see the though even favored unfavored negligence not guilty proximately causing car he will be for, could, if had seen it he on the accident he unless put it to the have assumed would stop. notice contrary, in Belle Isle Cab As Henderson for the Court it Judge put Pruitt, not Co. v. 187 Md. the favored driver circum- relieved of the due care under the obligation use care, stances in due determining assumption “But isway the unfavored will stop yield an factor.” important un- due care obligation
This favored driver use In der the circumstances also has been stated and restated. chance of last clear case which doctrine (in Greenfeld Offutt, collision), Judge was held in a street applicable stop Court, law “does for the said boulevard speaking an ab- mean that the on the has highway traveller favored solute, all times complete right way, unqualified, circumstances, lawfully all persons under over who street, entered the nor that he can thereon blind proceed ex- danger may indifference to the to which his progress are the driver many others. There situations which pose high- an a an entering automobile favored from unfavored over be traffic way negligence endangered by without may * * * same; into coming a child along unexpectedly on, him some go cause or to or highway may stop brakes, motor, his or steering gear defect ** So, his *. controlling automobile where may prevent on know that traveller a favored knows should his a traveller the same progress endanger entering will he must care a restricted exercise reasonable highway, him.” avoid injuring Marshall,
In 186 Md. the earlier Shedlock *8 cases were reviewed and the Court said that the driver who from an enters the boulevard unfavored must highway yield to all the traffic he there right way during finds not, “If re- entire time he is there. he does and a collision sults, he is fault and cannot the other against at recover unless the doctrine of last clear chance enters the case. driver * * * because he road. negligent He is has not yielded himself, his action is But when he Being negligent barred. in an damages is made a defendant action for resulting collision, he can show that the always other party
33 accident, if contributing to negligence also guilty him. this, against he no can be obtained succeeds verdict Then both are parties negligent.” case, supra, page Belle Isle Henderson in the
Judge case: Md., made this observation Greenfeld recognized “And in other in that the court opinion passages an not have that the driver on the does favored also absolute to under all circumstances. See proceed 207, re- 213. The the comment on this case in 4 Md. R.E. codified, Code, as citals 1 of Article 66of Section would seem to the statute negative any implication to so designed the established law of change negligence to relieve the favored of all to use care.” duty driver Tours, Md.
Sonnenberg Monumental Motor Markell, by any “The of a taxicab Judge said: driver other driver absence is not under a in the duty anticipate, evidence, neg- that other drivers will often—or ever—cross ligently in sup- violation of the boulevard law.” (Emphasis Co., Hall, 461, 467, plied.) Cab Inc. v. per- Sun 199 Md. mitted recovery against in a taxi passenger favored the taxi owner because the did not see an unfavored car in the intersection in time not to hit it when he would seen it in have time to if looking. he had been stopped Judge Chief for are Marbury said the Court: “Boulevards traffic, posted for the are but purpose accelerating they not constituted for do not speedways reckless drivers who watch what is going on. It is true boule- that the driver on a is not obliged vard that someone will anticipate negligently come into his but he path, liability excused from in, his if passengers someone does come fails to and he avoid a collision because he did not look in time to see what was inevitable.” DeFontes,
Fowler v. 211 Md. reiterated favored right of “is be with due way enjoyed regard to the circumstances then and there existing.”
The latest was made pronouncement by Judge Henderson Contractors, State, the Court Inc. v. 225 Md. Eastern 112 (which equated a road on which the light green *9 circumstances,
to a boulevard) as “There may follows: be apart distance, from nice calculations of time and under which a favored proceeding on a green light may be put upon notice that an unfavored driver will enter unlawfully.”
We think the instant case rare in presents one those stances in which the conduct of the favored driver was prop erly subject to a jury’s determination of its reasonableness and prudence under the circumstances. The principles spelled Co., out in v. State Marvil Package Md. Green Co., v. Hook Hall, Cab Inc. both are supra, Sun feld In controlling. Marvil the intersection controlled aby blinker as in light, the case before us. Code Art. (1957), 66)4, provides Sec. as to blinker lights: “Whenever red or amber flashing signals are used they shall require obedience by vehicular traffic as follows:
“(1) Flashing red (stop signal).—When a red lens flashes, is illuminated by intermittent rapid drivers of vehicles shall before the near- stop entering est crosswalk at an intersection or aat limit line when marked and the shall proceed be sub- ject to the rules after applicable making a at a stop stop sign.
“(2) Flashing amber (caution signal).—When an amber lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through the intersection or past signal such only with caution.” Judge Sobeloff the Court said in Marvil that the law in other is that “a States driver on a through street when an approaching intersection controlled amber and red flashing signals must exercise a caution commensurate with the prudence of a reasonable man.” He continued:
“When the State has erected an amber signal regulate traffic on a through highway, we think it not unreasonable to find its purpose to exact the users of a a caution higher than is to be expected the absence of such a signal. to So *10 ineffectual or render does not diminish hold does Nor highway. through of the modern utility assume cannot user of the it mean that a signs. stop with will stop compliance that drivers through that one should not proceed It means merely mean, does it. It intersection oblivious to such an light an amber that plainly says, as statute facts if the a warning cautiously, proceed to a failure has occurred due show that an accident admonition, a collision when to take of such an heed caution, then exercising could by have been averted of the favored the user upon be liability may imposed may main artery on the While artery. his from on the vehicle approaching ordinarily rely red light, as right required by or left stopping if indicate that the approach- the circumstances yet on the then a arises duty vehicle will ing stop, if he driver to avoid an accident part the favored of ob- disregard can. He cannot proceed complete vious danger.” which, if
There was evidence below believed the jury, calculations,” “nice a find- would have without permitted, car at the intersection as the law Hurry stopped that ing and started across when there was no traf- through requires to which it was required yield way, fic that feet from twenty standing it traversed some a twenty-five light start and stood stalled under the blinker for an addi- collision, tional five or more seconds before the all that Mrs. Harper this time continued to during at an approach observing without the road speed undiminished ahead and that when her “hollered” that the passenger car Hurry would them, Mrs. did not even know Harper hit another car was “where,” out around and had to cry just the two cars hit. had a Harper duty, imposed by the flashing amber through light, proceed intersection “only with cau- This, evidence, on her own tion.” even she did not do. She Marvil, in the duty, had the correlative words “if circum- indicate that the approaching stances vehicle will not stop ** *” collision, to avoid the if she could. The circumstances car, here not indicated to the in the only passenger Harper look, who did to enter Hurry going vehicle the intersection things but included one of the Green- very v. Hook who endanger said could an unfavored driver feld entered is, de- negligence, a boulevard without “some fect in the motor” As which control of the car. prevented case, driver, in the ac- Cab the favored Mrs. Harper, Sum to the cording of her testimony passenger, completely inattentive to what was ahead in the road because she so look before busy talking just she did not until yelled the then any inevitable Without “nice calculations collision. time, distance,” speed and could have found all the that if Mrs. had look- testimony Harper kept proper *11 out she would seen the car in its position have Hurry obvious in it other- peril time have avoided or by stopping, wise. The that negligent rule the favored is not made driver by to look failing controlling Harper is not because here Mrs. would not been entitled to on the usual rely assumption that the unfavored car would not come into the be- boulevard cause of the had come in and stalled. already evidence O’Donovan,
The case of Baltimore Transit Co. v. Md. facts, distinguished is to be on the for the reasons case, it was distinguished the Cab that namely, Sun the right O’Donovcm driver “had the to assume that the vehicle, other in a the safety grass would place plot, remain there and the yield way,” suddenly play and into jack through rabbit out the street. There was pull O’Donovan, no amber “caution” requirement the driver inattentive, of the vehicle was not and favored the distance and cars between the favored unfavored was short when the Thus, latter out and stalled. the proximate cause of pulled the sudden unlawful intrusion of injury unfavored car. for a think Mrs. motions directed verdict Harper’s
We notwithstanding verdict judgment rightfully and were denied. charge as to the to the jury are that complaints a boulevard driver on that a told the jury
court erroneously if and intersections his speed must decrease limita- prudent” speed the “reasonable violated Harper caused indirectly” or “directly tion and her violation read The court of, liable. she was injury complained (a) (e); (a) Art. Code jury 6Secs. (1957), greater at a highway on a “No drive a vehicle person shall the conditions under prudent than is reasonable speed ap- when speed must “decrease then driver existing;” (e) high- through except an intersection crossing proaching * * *.” ways obliga- of the had been told reading Before this favored rights driver and the tions the unfavored light boulevards, amber flashing driver and that this “but with caution meant that could proceed only Harper care such and with does not mean at such reduced speed violation instantly upon that the driver can stop favored * * * rather, but, its that the favored right-of-way man of a reasonable prudence must exercise caution with the * *” * com- with the caution and that if Harper approached simi- man under of a reasonable mensurate with prudence were They negligent. then was not lar circumstances she drive no shall told after of the statute that reading person reasonable than greater on a at a speed a vehicle exist, found and if they as they or under conditions prudent said in violation of her automobile driving “was Harper caused indirectly law and that such directly violation *12 she was liable. of” injury complained if concur- an instruction that there was There came next of each “was negligence and the negligence person rent of then both injuries, cause of the contributing proximate for any injuries liable jointly separately such are persons their negligence.” from resulting proximately error in the considered charge, We find no prejudicial the test- facts of the case an Under entirety. particular of caution had been exercised the favored by whether due ing she consideration of embraced whether necessarily the claim incorrectness speed, her reduced properly inartificiality which appellant levels phrase “directly indirectly” under other (which circumstances might be justified) refuted the instruction as to proxi- cause, mate following in the immediately charge, which clari- fied and limited of the meaning challenged phrase.
The had court refused to allow the who policeman State his investigated accident in who had the course (and work investigated some three accidents), hundred prior as an testify that in struck his car expert opinion Hurry true, car. It that an Harper is as the appellant urges, test as approved to the admissibility expert opinion whether the can receive from the jury appreciable par- help ticular witness on the de- subject, not whether the can jury cide the particular issue In without expert help. Shivers Carnaggio, 223 Md. we quoted Wigmore, Evi- dence, Ed., Evidence, McCormick, 3rd Sec. Sec. 1923, effect, to that with It error approval. would have been to have admitted the think its proffered testimony but we refusal, error, assuming it to have been was not prejudicial. in passenger car Harper who watched the accident happen a vantage testified point, flatly and with preci- sion that the car Hurry plowed into the side Harper car. There were some ten in photographs showing evidence the damage to the two cars. The could have decided how contact between the cars was made without expert and, while this fact does not testimony, preclude the admis- sion of such testimony, would seem to have considerable weight whether the refusal deciding to admit the expert awas abuse of testimony prejudicial discretion. Cf. Christ v. Wempe, 219 Md. and Empire Insurance 627, 633, 634, State Guerriero, Further, Co. v. 193 Md. the striking by 514. either car of the other could been consistent with either the Hurry or the Harper version how the two acted and law, re-acted relation to the boulevard the decisive points case, in the particularly view the testimony car Hurry. eased ahead from the starter, use of the after it stalled under the light. blinker
In argument his to the counsel jury, for Mrs. listed Higgs
39 hus- and her her incurred by the expenses a blackboard on in addition that the verdict jury and to the argued band then by measured suffering and amounts for pain should include and duration suffering (the dollars for each of many day so her of reason Higgs by by suffered intensity pain testified been injuries serious and had very permanent he suggested For example, her doctors). detail her and day a first and a week day $100 a of for the valuation $500 months, counsel Harper’s next so on. Mrs. four and for and argument begun when the moved mistrial $77,795.00 put figure when total of again suggested told the judge At that the trial point on blackboard. no were of counsel suggestions plaintiff’s and illustrations ar- method of than his and that his part argument more inwas thought at what he was an verdict riving appropriate them, and it their function no on and that was way binding found damages they proper theirs alone to award such under law and evidence. argu- diem
The
and
so-called
legality
per
propriety
ju-
as to
has
of extensive
damages
ment
been
subject
the Supreme
dicial consideration
recent
In
years.
1958
and held
Court
its
views
Jersey changed
previous
New
Brunner,
in Botta v.
and con are well summarized and in Ratner v. discussed 111 Arrington (Ct. 2d 82.2 App. Fla.), S.
The a subject of discussion at the topic Maryland Ju- dicial It Conference of that the diem appeared per 1960. form of argument was allowed most the trial by judges of all, of allowed, the but not and that it was by State where cautionary given instructions were that argument the jury was not evidence and alone determine the they must proper verdict. Generally the had to in argument be made the open- ing speech counsel for the if plaintiff; made the closing argument, the defendant was permitted to rebut it. Some the “oversized,” trial judges felt that the if not astronomical amounts built up and claimed under the diem per formula defeated their own and purposes caused to react so jury the as to a lower than bring verdict they have would otherwise. no We find need to the decide in this question case. There is that, no claim Mrs. brief Harper’s if she were liable all, excessive, the verdict was or even large, and certainly arguments against argument 2. per The allowance of the diem in- evidentiary converting pain suffering clude: there is no basis for monetary terms; suggest monetary equivalents pain into for suffering testimony giving expression amounts to the or the opinions evidence; juries by frequently not disclosed the are misled making awards, into the of excessive and admonitions of the trial argument preju- court that is not evidence does not erase the dice; put disadvantage by being required the defendant is at a to re- argument having but an in the no basis evidence. arguments allowing per The for diem formula it is include: necessary by guided practical that be some reasonable considerations; relegated guess; a trier of facts should not be to a evidentiary yardstick very any absence of makes the contention suggestion doubtful; jury highly argu- that counsel’s mislead the present reasoning ment more than one does no method of which the may employ making trier of the facts aid him in a reasonable estimate; argument only sane that is not evidence but illustra- suggestion danger tion or and that claimed will be mis- exaggerated dispelled only by taken is not for evidence but is and, point; finally, court’s on instructions that when counsel for argument opposing equally one side has made such an counsel suggest free to his own amounts the same evidence available plaintiff’s counsel. frankly counsel it was. Her record that showing in the no very painful that in view the argument at the oral stated effects, permanent and their drastic and serious injuries deciding If assume without verdict was not excessive. we re no we see prejudice the argument improper, $77,000. over The claimed was sulted from its use. amount this. Compare than a third of verdict was less jury’s Oil, 2d cert. Cir.), v. Drlik F. Imperial (6th Ltd. in which a calcula 2d denied 352 U. S. L. Ed. argued Higgs’ in the manner judge tion by error since the to be at the most harmless counsel held verdict was not excessive. *15 with costs.
Judgments affirmed, Henderson, J., following dissenting opinion. filed the the of opinion with the regret agree
I am unable to I the in on discussed. On any points Court this case “The Un- first I think the case well be entitled point might Hurry”. due Haste of Mrs. under boulevard cases recognizes
The
the
opinion
of
contribu-
guilty
negligence
favored driver cannot be found
of an
of a fail-
accident
because
ting
happening
merely
that it
anticipate
ure to
an unfavored vehicle or to
observe
or
will fail to
The fact that this
yield
right
stop
way.
amber
flashing
lights
intersection was controlled
red and
than
prevent
rather
does not
stop signs
application
Co.,
rule,
Package
boulevard
as was held in
v. Marvil
State
Pruitt,
174,
Belle
In
Md.
the Court
Cab
Inc. v.
Sun
driver
that a
the favored
jury
against
question
presented
that the
because
of a
unfavored
testimony
passenger
one-
entered
the intersection when the favored vehicle
driver,
third of a
had he been
block
and that the cab
away
and could
looking, could have seen it
the intersection
The
of Baltimore
time to avoid the collision.
case
stopped
O’Donovan,
distinguished
Transit Co. v.
197 Md.
on this
case since
ground.
only
The
Cab case
Sun
Hook,
v.
this Court
(1939),
None are They the facts. on here reached the conclusion supports way they say for hold but what cited not for what they under go might the court to how far disclaimer as prudent tends disclaimers such Reliance upon other circumstances. which, line of demarcation consistent to obscure that clear and always not, should this court whether correct abstractly I and bar. the bench guidance seek to clown for lay facts. cited on their am cases distinguish unable the collision versions of There were twT0 different testified and her passenger instant case. Mrs. Hurry intersection, stalled into it and proceeded she at the stopped un vehicle saw the favored Neither witness middle. whether as to testify and so could just til before the impact They or not. have been stopped favored vehicle could on one testified the vehicle struck the unfavored favored estimate cases cited the passenger’s side. Under the enough is not the car stalled for a few seconds remained been an that the favored vehicle could have inference support emergency question stopped, wholly apart with which the favored driver was presented. passen- and her
The other version is that of Mrs. Harper thought she the other car and ger. Mrs. testified saw Harper stop. light. blinking would had slowed down She struck other intersection and car did not for the stop that she agreed, left side of her car. Her passenger except tried going stop, that the other car was not anticipated asked, did, Mrs. Harper to warn Mrs. but when she Harper, “Where?"’, moment of the cases impact. at the Under just an in- cited I think is insufficient to testimony support attentive, ference that been more she could Harper had Mrs. fail to that the other car would stop have anticipated *17 44 the
yield and that way she could have then avoided evidence, the collision by There above stopping. specu- is no lation, as to how close the vehicles were at the moment intrusion. demonstrate,
As the cases a driver is not obligated favored to anticipate that an will the statu- disregard unfavored driver and, tory injunction, situations except analogous rare last chance, clear the the proximate cause of the accident unlawful intrusion of the unfavored car. That principle Faulkner, clearly laid 477 down Cab Co. 163 Md. Sun v. (1932), a case has been which cited and followed. repeatedly I think the should a in favor Court have directed verdict of Mrs. Harper. which, instructions,
Passing the as to the point Court’s think, I did not meet the tests so laid down in recently East- ern Contractors, State, Inc. Md. I think 225 Court testimony committed reversible excluding error in of the State If he policeman. had been allowed reconstruct facts, the accident from the observed as he was physical quali- fied Melville, to do Acme Md. (cf. Poultry Corp. v. 188 365, 373), it clear might light thrown a which upon If, version of the accident was he had correct. example, testified that front of the unfavored vehicle struck one, side of the favored would have tended discredit testimony of car that her Hurry her passenger stalled in the middle of the road before impact.
Finally, agree I cannot the action the plaintiff’s counsel in calculating a diem value upon blackboard per he placed upon plaintiff’s pain suffering prej assume, udicial. For deciding, I present purposes without as do Court, im majority argument Brunner, proper. Botta v. 2d See 138 A. 713 (N. J.), Balick, Henne v. 146 A. 2d In T. V. & (Del.). Certified Appliance Co. v. 2d 126 Harrington, (Va.), S. E. court reversed judgment a new trial as ordered alone, damages although the verdict was less considerably than the amount so find it say demonstrated. I difficult to verdict, that the error was cured when it is impossible *18 rendered not have might might whether the say if the had not been argument a smaller verdict improper the question made. I think should have considered this Court on its merits.
DAVIS STATE et al. Appeals In (Two Record) One 194, September Term, [No. I960.] April Decided 1961.
The cause J., C. Bruñe, was argued before and Hender- son, Hammond, Horney, Prescott JJ. Russell, Jr.,
George L. Benjamin with whom were L.