*1 v. BUTLER еt al. LEIZEAR et al. Term, 299, September 1960.]
[No. Record) Appeals In One (Two *2 Decided July Hammond, C. Bruñe, J.,
The cause was before argued Horney Prescott, Sybert, JJ. Schmidt, West, for Herbert R.
Thomas one Jr., B. appellants. Fairbanks, McAuliffe, Heeney
John with whom were & B. on McAuliffe, M. Fairbanks and Robert C. Philip Heeney brief, Leizear, the other appellant. Carlton Davis, with James B. whom was Victor L. Crawford brief, for appellees. Hammond, delivered the Court. J., in the Circuit for Mont- Three suits were instituted *3 Mont- as result collision between a a a gomery County West, driven a police appellant car gomery County by Leizear, officer, fellow in which the a county police appellant officer, and owned by appelleе was a a taxicab passenger, driver, the operated appellee Central Cab and Company by in- for personal Butler. sued for damages West and Leizear sued County medical and juries expenses, Montgomery and But- to its The Cab and Company automobile. in all im- They ler were the defendants three suits. original as suit West and pleaded Montgomery County Leizear motion to Montgomery County’s third defendants. party there claim granted dismiss the was party against third original from that On of the suggestion no order. appeal w^as Prince George’s to defendants all three cases were removed and a The jury. before the court tried County suit, for the in the West verdicts: following returned jury suit, Butler; in the defendants, Company the Cab Leizear defendants, Leizear, the Cab for the against plaintiff, West, $405.92; in the Montgomery Butler and Company, defendants, the and But- suit, Company Cab County West, Mont- ler. Motions new trials by overruled, were entered judgments were gomery County appealеd. West upon Only verdicts.
The facts: In the seat an car, back unmarked police police officers had a youth suspected crime, of a and were for another looking suspect. They thought youth bi- cycle nearby might the one were for. they The looking police car either slowed down from speеd of about 25 miles an hour hour, to 10 or an 15 miles or stopped entirely. But- ler, cab, driving down an starting incline (the somewhat exact distance is not behind the clear) car, police looked over at a new then under building he construction. When looked back he saw the police car just ahead him he says time, could not left, stop or swerve far enough avoid his cab’s the left striking rear of the police car. question of whether or not due car’s warning police slowing down or was slopping given arm signal light was to the submitted jury.
In West’s appeal the only which deter question calls for mination is whether the trial court erred submitting contributоry negligence to the jury. record shows exception to have been taken to the court’s charge West’s negligence, review, aid matter is not before us for Maryland Rule e. 554 We were at the argument told part of the transcript conference in chambers pertaining with regard to the instructions been lost. has If this point then raised result properly preserved, the altered, for the evidence of West’s sudden down or slowing stopping sufficient to call the sub warning was mission of the queslion and to warrant finding West Baltimore Transit negligent. Prinz, Co. v. It is obvious that the same evidence which sustains the him of contribu finding against *4 the Butler is tory negligence Company Cab and regards also sufficient to show in relation to primary negligence Teizear. different That he appeal presents problems.
Teizear’s not the verdict was established contributorily negligent for defendants .against original impleaded him and defendant, for his West. verdict was party jury’s third $405.92, of of consisting hospital special damages claimed transportation of for medi- expense medical expenses, cal treatments lost at his wages average rate of weekly for the two that weeks he was not on $83.46 duty following the accident. contends that (a) was prejudicial Leizear error for the trial court tо admit evidence that he was paid his wages by Montgomery County during period his work, absence from that since verdict (b) allowed him for so nothing suffering, and was inadequate the judgment for should be reversed and case $405.92 remanded for a new trial. trial court ruled correctly that the amount of not to be reduced Leizear’s bеcause his payment his employer during wages accident, period disability due to the Plank v. Sum mers, 552, but, nevertheless, permitted Leizear over that testify objection him Montgomery County paid his regular the time he after the salary during was not working accident. Courts other states that testimony have held such is admissible if there is evidenсe or malingering case exaggeration of v. Capotosto (McElwain (Mass.), 901; 122 N. 2d Transports, Union Inc. v. Braun (Tex. E. 927; Civ. App.), 318 W. 2d Ridilla Kerns (Mun. S. cf. Ct. D. A. if App. C.), 155 but is inadmissible 517) 2d evidence or if the the real is asked for question purpose of mitigating liability of defendant (R. E. Dumas Milner Chevrolet Co. v. Morphis Civ. (Tex. App.), 185; 337 W. 2d S. v. Capotosto, supra, McElwain at page 2d; 902 of 122 N. Hellmueller Risen Co. v. Baking (Ky.), E. 174 W. 134).
In the case at bar the essence of the that if defense was had been at all injured Leizear was but very slightly. Butler Cab that Company immediately, showed with- two, in a minute after the that he accident said hurt, was not that he went to a housewarming party brother police night, that while there he officer had talked with that he then lawyer and said needed an attorney, doctor, was able his car the to drive twelve fifteen between home miles his doctor’s office examination number during pe- of treatments weeks, riod claimed two temporary (total disability he visited store partial one) grocery during *5 trips. testified that he began to feel a few pain Leizear accident, minutes after the that he suffered considerable pain that while at he housewarming party, to sit down had visit, all of almost his and that when he during made the remark about he had needing lawyer seen a doctor already at the that in his hospital. physician testified treating be- opinion could make short drives relatively Leizear tween home office without injury his doctor’s that the of while position use and his arms would driving not since his or increase would be made pain, pain cause horizontal worse raised to above a when arms were only plane. he
There was that had testimony plaintiff Leizear from that injuries, suffered his he had disabled pain two of as offi- police weeks from his duties performing any cer, only to perform that for another week he had been able house, three that for about light duties around the station for two brace, that weeks he had to wear neck had occas- months or after the he experienced more accident his gave ional in his neck. pains treating physician Leizear’s extent, dis- temporarily to the painfulness found evidence effect doctor injuries. of abling Leizear’s neck muscles. these of the injuries spasm of “Now, the jury: trial instructed charge judge In his in- the Court furthermore, earnings, on this matter of loss law, find though you that even you structs matter of as a nevertheless, salary, regular police Mr. his paid Leizear should earnings, to loss your respect verdict with is fact, which his earning capacity but it affected favor The verdict compensable.” to, testified the special exact amount of duty off he was the two weeks which wages included to decide reason We see in the amount of $166.92. would testimony challenged whether the admission in view error more, itself, been prejudicial have which on the point, instructions explicit the court’s for amplification. excеption request was no must from appealed judgment the claim We pass nothing allowed the verdict because be reversed are cases There inadequate. and was suffering other jurisdictions which have held or said that a verdict *6 allowing but special damages giving nothing pain and number, will not be to suffering allowed stаnd. In a the ap court has the pellate affirmed action the trial in court granting a new trial under circumstances on the ground no abuse discretion.1 In some appellate court has said that such a verdict is the instruc contrary tions of the trial court law therefore improper unlawful.2 Other cases have taken a different Of view. held, these several have where the evidence was as conflicting to the extent of the claimant’s that the injury, could have jury one found or more of special unjustified items were damage or excessive and the total amount of bills as regarded sufficient include Supreme Court pain suffеring.3 The 552, of New in Hampshire v. A. 2d Roy, 108 held Gomes that if the as evidence of claimed a suffering result was or it disbelieve subjective, could believe allow were only special objective but if damages demonstrated, in must addition something allow they special suffering. compensate pain Chovan, Supreme
The v. 152 Pennsylvania Court of Elza 238, A. 2d the trial new granting reversed court’s action a trial where a verdict for less than expenses medical rendered. The new refusing Court said granting or trial for inadequacy peculiarly within discretion trial court and the Court reverse unless appellate will convinced the verdict or prejudice resulted from partiality some or the misconception of the law evidence and clear shown. It further that if the wrong injustice is said ver dict bears a reasonable resemblance to the proven, verdict 91; City (Iowa), 1. v. 3d Yacabonis Webster of Colfax 93 N. W. (Pa.), (Pa.), 690; 101 Bercini 93 A. 3d v. Gilvickas A. 3d Todd v. 538; 518; (N. D.), Deschane 86 3d v. McDonald N. W. Cohen v. Storеs, Pa.), (Super. Food Fair Inc. 3d 441. Ct. 155 A. (Colo.), Whiteley 2. Murrow v. 244 P. v. Weise 2d 657; Justice (N. J.), Biggs (Ore.), 81 A. 3d Cornett P. 2d 178; Hall v. 240 331; (Ky.), (Ky.), Toone v. Wall Meter W. v. Van S. S. 244 2d 223 443; Wright (Ky.), cf. W. v. W. 329 2d 560. 734; Jackson Rptr. Mangum, 67; (Ky.), Morseman 2 Cal. v. Mathis Jones 55; Fleming (Wash.), W. 2d 339 S. cf. v. De Witt 249 P. 2d 776. not substitute may judgment jury, because verdict is does not it is in merely low mean will not it is adequate upset and a verdict be because just than less Cases which are expenses. agree substantially cited below.4 in the circumstances case before us are vari similar
ous in the respects to those cases which have refused dis turb a special damages only verdict allowance but be the rule else suffering, may whatever where, we firmly Maryland established that whether find the сlaim be of excessiveness or the action of inadequacy trial court in if rarely, allowing or a new trial will refusing ever, Nichols, In Chiswell v. Md. appeal. reviewed on 443, 444, verdict in case was personal injury $300.00 Court, in re strongly grossly attacked inadequate. *7 trial, the trial refusal of a cited fusing review court’s new Poe, 2 and Praсtice “Mo Ed.), 349: Pleading (Tiffany Sec. the tions for a trial are addressed to discretion of new sound court, them, the its action in or granting refusing and from terms, whether no then or on will lie.” and absolutely appeal the Baltimore Rail adopted the of in Ohio language Court & road Co. v. 65 Md. 222: the immemorial Brydon, “By courts, has of the the аn practice Maryland unqualified to form on the the court de right judgment facts which or sufficient, interference termines to be legally any control on the After the is ren part Judge. verdict dered, the the case set it aside and Judge may who tried discretion, it. a trial in his if so grant justice requires new more But the this Court are much limited. We functions of on or have no the incorrectness right to decide correctness the the verdict We are restricted entirely ques a jury. the below” (italics ours) tions of Court by law decided in Alvey concurring then of Chief a language Judge added “The in the case: Brydon motion for reargument 44; (Pa.), Carpenelli A. v. 38 DeFoe Bus Cо. 2d v. Scranton 4. 205; (Fla.), (4th 2d Cir.), Farkas 118 So. F. 2d Alessi v. Duhl 438; Cal.), 658; (Dist. App. 346 P. Wads Kraut 2d v. Cornell Ct. Herring 94; (Ark.), Gathright Zellem v. v. 330 W. worth Supp. (D. Pa.), C. 102 F. law has provided means of redress against erroneous verdicts, unjust trial, motion for by new addressed to the court case; that, heard the but with noth- this Court has to do" ing (italics ours).
In Parks, 195, 203, White v. 154 Md. this Court said: “The size of a verdict can in this court only given weight where, a comparatively cases, restricted class" if legal error is found court, trial rulings becomes necessary to if consider amount indica- is judgment tive of the appellant.” The v. Riley Naylor, 9,1, 179 Md. put this difference be- way: “Merely wide tween the amount of action in per- laid an tort sonal injuries amount awarded verdict jury affords no has basis an It plaintiff. appeal by long no court has uniformly held this appellate right to decide on the in amount of a adequacy inadequacy rendered, verdict has jury. After verdict is court discretionary power set grant aside verdict and trial, new if in the interest of of the trial justice. action court in the this error exercise of authority assignable on appeal.” Crouch, In v. Kennedy 580, 591, it specified:
“* * * it is not for the Court of
Appeals
change the award
of a
unless
reversible error has been committed.” See
Rephann
also
90, 92;
Armstrong, 217 Md.
and compare
Havens v. Schaffer,
We have found prejudicial error either in the admission *8 of evidence inor whiсh, instructions to the jury, unex- to, cepted that charged in determining damages should they consider and appraise the detriment to health and Leizear’s well-being as a result of the so, accident. This being adequacy of the verdict is not reviewable on under the appeal decisions of this Court even it though included nо compensa- tion for pain and suffering. It was the province the trial court, in the exercise of a sound discretion grant to or refuse trial new on the claim that the verdict was be- inadequate cause of failure to award damages and pain suffering, otherwise. There has been no of an showing abuse of dis- triаl is in new refusing
cretion and the trial court’s action not subject appellate action. affirmed, costs. with
Judgments C. Bruñe, in in filed dissenting part and J., concurring part the following opinion: with the that the agree
I am unable to view majority admission of the that been compen- testimony of his time he absent from work because sated for the was was not claimed disability prejudicial. appellees urg- it the admission evidence that had “a deal” ing great of this that it coun- “probative plaintiff’s value” and sel “the that man hasn’t would believe this received have two weeks.” The is conceded those evidence any money been for that purpose to have inadmissible by majority foun- by majority proper also conceded dation claim of malingering for its admission as supporting The trial instruction had not been established. court an gave of earnings” “with to loss respect its consideration excluding it is ca- the statement “but coupled earning this with on The court’s instructions which is pacity compensable.” not in form the usual damages suffering were pain future health with closely and seem to have very tied tell past It is difficult to whether possible disability. elements of were pain separate even treated as suffering was given, certainly the instructions damages during disability instruction thаt the evidence of payment effect that to them. Any not to be with regard considered may this have had upon evidence estimation, eliminated, in my certainly suffering was, It power. disregard earning instruction to of malin- think, evidence left for primary I consideration as to press right waived his I not think gering. do charge ground exсept failure this point by consideration evidence from that it have this should excluded any purpose. case as West’s with agree majority I nominal from any question least apart holding (at *9 under our damages) law a verdict personal case not, law, a matter invalid because it does not include an award for The so suffering. called standard damage in this prayer general use for about ninety- State five years frequently approved this Rhone (see Fisher, 223, 225, 167 A. 773), calls for an allowance for these other “in items only as, amount your fair jury’s] opinion, will [the just compensation said injuries, expenses.” loss and al., TRUSTEES,
RUPP al. v. M. etc., et et COMPANY, INC. JOHNSTON Term, September [No. 1960.]