185 A. 453 | Md. | 1936
This is the third time we have had this case, and it will be the last.
The first appeal is reported in Mt. Royal Cab Co. v. Dolan,
Fifteen exceptions were taken by the defendant, of which the first three were to questions put to lay witnesses, the fourth to the refusal of the court to withdraw a juror, and declare a mistrial, and the remaining eleven (five to fifteen) to the hypothetical questions and the refusal to strike out answers to the questions by Doctors Levy and Gillis.
The first four exceptions were not argued either orally or in the brief, though the defendant stated in the brief that they were not abandoned. As they were not treated *657 as of such importance by the appellant as to warrant any consideration by it, and as we find in none of them reversible error, we shall proceed to discuss the exceptions five to fifteen, which may be treated as one, for they all go to the form and admissibility of the hypothetical question put to Doctors Levy and Gillis, the experts called by the plaintiff.
The plaintiff sued for injuries sustained in a collision by one of the defendants' taxicabs with his automobile on January 28th, 1933. The judgment by default admits the occurrence of the accident, some injury of the plaintiff, and the defendants' liability for such injuries as were caused by the collision. 2Poe's Pl. Pr. secs. 369, 372; Betz v. Welty Co.,
The exceptions five to fifteen, really one exception, go to the form of the hypothetical question, twice asked of and answered by each of the medical experts, Doctors Levy and Gillis, which was: "Doctor, assuming all the testimony you have heard in this case to be true, but excluding from your consideration all opinions, conclusions, inferences and conjectures of all preceding witnesses, and accepting as a fact the testimony that Mr. Dolan gave on the stand with reference to headaches, namely, that his headaches were less frequent now but more intense and lasted longer, rather than any contradictory statement on the subject of headaches; and accepting the statement of Mrs. Dolan that he occasionally *658 drives the car to church, rather than accepting the contradictory statement of any witness that he never drives the car now, since the accident; and having those two points in mind where there is a contradiction in the testimony, are you able to give an opinion as to what was the probable cause of the physical and mental condition of Mr. Dolan at the time of your examination on November 1, 1935?" Having said "Yes," Dr. Levy said, "It is my opinion that the present condition from which Mr. Dolan is suffering is the direct result of a shock that he sustained when he met with an automobile accident on January 28, 1933." Dr. Gillis answered: "My opinion is that Mr. Dolan's present condition, the functional nervous condition which I found on examination, is the direct result of the injury and shock which occurred to him in the automobile accident on January 28, 1933."
The question is a combination of the formal method, by which the facts on which the opinion is to be based are stated by the questioner, and the other (Tanner case [Baltimore City Pass.Ry. Co. v. Tanner],
If this were a case in which the proof of physical, nervous, or mental damage depended upon the deductions of an expert witness, we could not let this question stand. Abend v. Sieber,
It is therefore evident that the expert testimony of Doctors Levy and Gillis was not necessary to establish and prove the nature and extent of the injuries of which the plaintiff complains, there being no claim made for permanent injuries, and that, aside from their expert testimony, there was evidence from which the jury might ascribe the plaintiff's condition from the time of the accident to have been due to the defendants' negligence, and their expert testimony, even if inadmissible, was not harmful, and the judgment appealed from should be affirmed.
There was another matter to which we are constrained to refer, and that is the incorporation in the record of the evidence and court's remarks on the motion for a new trial. As stated in the first appeal,
Judgment affirmed, with costs, except as otherwise noted inthe opinion. *661