Barrett v. Charlson

Scanlan, J., delivered the opinion of the Court. Appellants, Joseph A. Barrett and Pauline C. Barrett, were the parents of a twenty year old, unmarried daughter, Deborah Barrett, who was killed in a single vehicle automobile accident occurring on Burdette Road, Bethesda, Montgomery County, in the early morning hours of May 31, 1970. They brought an action under the wrongful death statute 1 against the driver of the car in which Deborah was riding as a passenger at the time she was killed. Appellants’ declaration alleged that they “have sustained pecuniary loss and have further suffered the loss of society, companionship, comfort, filial care and attention, mental anguish, emotional pain and suffering.” No proof of pecuniary damages was introduced at the trial.

There was evidence of mental anguish and pain and suffering experienced by the appellants. Several times it became necessary for the court to recess the trial in order to permit Mrs. Barrett to regain her composure, the trial court observing on one such occasion that: “This woman [Mrs. Barrett] is suffering from a very serious personal injury.” At the conclusion of the evidence, the trial judge directed a verdict against the appellee on the question of negligence and submitted the case to the jury solely on the issue of damages. The evidence was clearly sufficient to establish the appellee’s negligence and he has not cross appealed from the ruling on this issue. The jury awarded the appellants a total of $2500.00 in damages.

Appellants filed a motion for a new trial, alleging the verdict to be grossly inadequate and complaining of the instructions given by the trial judge on the question of ⁸² damages for mental anguish and pain and suffering, as discussed below. The motion was denied and judgment was entered on August 4,1972. The issue presented on the appeal is whether a 1969 amendment to the wrongful death statute, under which the parents of a minor child for the first time were given the right to collect damages for solatium, including mental anguish, emotional pain and suffering and related damages, was intended to restrict these new categories of recoverable damages solely to a period equivalent to the child’s minority, had he or she lived. 2 The question is one of first impression in Maryland. For the reasons set forth below, we conclude that the damages for solatium which the General Assembly authorized for the first time in the 1969 amendment to the wrongful death statute are not so limited.

Article 67, Section 4(b), enacted in 1969, reads as follows: “(b) In the case of the death of a spouse or a minor child, the damages awarded by a jury in such cases shall not be limited or restricted to the ‘pecuniary loss’or ‘pecuniary benefit’ rule, but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable.” (Emphasis added.) 3 During the course of ruling on motions for directed verdicts in chambers, the trial judge indicated that it was his view that Section 4(b) was to be “narrowly construed.” Subsequently, in his instructions to the jury, he adhered to that view when he charged it as follows: “Taking into consideration these matters, you should award to the plaintiffs such money damages as in your opinion would be fair and just ⁸³ compensation for the mental anguish, emotional pain and suffering, loss of society, companionship, comfort and filial care which you may find they suffered as a consequence of the accident at that time and up to the time Deborah would have reached her twenty-first birthday.” (Emphasis added.) The following colloquy between the court and counsel for the appellants then took place: “THE COURT: Do you have any exceptions, Mr. Intrater? “MR. INTRATER: Yes, if your Honor please. First of all, I except to that part of your instruction which limits the pain and suffering up to the time that Deborah would have reached her 21st birthday. “THE COURT: I understand your argument or your exception on the limit of pain and suffering. I have indicated to you before this my belief that that subsection (b) is a statute which modified the prevailing rule as to damages and that it is to be narrowly construed.

I believe that the elements of damages which may be considered in these cases are limited to the minority of the child. So I will overrule your exception.” (Emphasis added.) The appellee argues that the appellants did not preserve the issue of whether appellants’ “mental anguish” could be ⁸⁴ considered beyond the time their daughter would have reached her 21st birthday because appellants’ counsel used the words “pain and suffering,” in objecting to the court’s instructions. We disagree. A reading of the record makes it clear that appellants’ counsel was merely making a shorthand reference to all of the several categories of damages now authorized by Section 4(b) of Article 67, and referred to by the trial judge during a discussion in chambers and then again in his formal charge to the jury.

Under the circumstances, both opposing counsel and the court could not have failed to comprehend the ground of exception or the claim of error in the instruction to which it was directed. Kowalewski v. Carter, 11 Md. App. 182, 195 , 273 A. 2d 212 (1971); Kraft v. Freedman, 15 Md. App. 187 , 289 A. 2d 614 (1972). There was no violation of Rules 554(e) or 1085. 4 Prior to 1852, under the common law, Maryland permitted no recovery for pecuniary loss suffered by a relative of one killed by the negligence of another. In that year, the General Assembly enacted Ch. 299 of the Acts of 1852, which provided an action at law for the benefit of a wife, husband, parent and child of a person whose death shall have been caused by the wrongful act, neglect or default of another, against the person wrongfully causing such death.

McKeon v. State, Use of Conrad, 211 Md. 437, 442 , 127 A. 2d 635 ⁸⁵ (1956). Since 1852, changes have been made in the law, but the measure of recovery which spouses and parents of minor children could collect in wrongful death actions remained unchanged until the General Assembly enacted the 1969 amendment, the interpretation of which is in issue on this appeal. In Wittel v. Baker, 10 Md. App. 531, 533-34 , 272 A. 2d 57 (1970), we reviewed generally the nature of damages recoverable under the Maryland version of the Lord Campbell Act prior to the 1969 amendment to Article 67. We said: “This provision as to damages was also contained in the statute of 9 and 10 Vic., ch. 93, known as Lord Campbell’s Act, enacted by the English Parliament in 1846.

It did not prescribe in terms on what principle the damages were to be assessed. However, when the question of damages first reached our Court of Appeals in B. & O. R. R. Co. v. State, Use of Mahone, 63 Md. 135 , the Court found it to be settled law under English decisions that damages are not to be given as a solatium for grief or mental suffering but must be founded on pecuniary loss, citing Blake v. R. R. Co., 18 Q. B. 93 and Franklin v. R. R. Co., 3 Hurl, and Nor. 211. Thus damages were based on the pecuniary benefit the person injured by the wrongful death had in the life of the deceased and the claim must be founded on a pecuniary loss, actual or expected. ‘The right to maintain the action is therefore based on the pecuniary interest of the plaintiff in the life of the person killed, and the value of such interest is the measure by which damages are to be allowed.' B. & O. R. R. Co. v. State, use of Mahone, supra, at 146. The Court of Appeals consistently adhered to this construction.

As recently as 23 January 1969 when it decided Hutzell v. Boyer, 252 Md. 227 , it quoted with approval United States v. Guyer, 218 F. 2d 266, 268 (4th Cir. 1954): ‘Under the law of Maryland the measure of recovery for wrongful death * * * is ⁸⁶ the present value of the pecuniary benefit which the [survivors] might reasonably have expected to receive from [the deceased] if he had not been killed.” (Emphasis added.) Maryland has also limited further the measure of the pecuniary damages which could be awarded to the parents of a minor child by confining such damages to the services the child could have rendered during its minority only. In State, Use of Coughlan v. Baltimore & Ohio Rail Road Co., 24 Md. 84 (1866), the Court of Appeals held: “The law entitles the mother to the services of her child during his minority only, the father being dead; beyond this, the chances of survivorship, his ability or willingness to support her, are matters of conjecture too vague to enter into an estimate of damages merely compensatory. “According to the appellant’s theory, the mother and son are supposed to live on together to an indefinite age; the one craving sympathy and support, the other rendering reverence, obedience and protection. Such pictures of filial piety are inestimable moral examples, beautiful to contemplate, but the law has no standard by which to measure their loss.” Id. at 107-08 (emphasis added). The holding in Coughlan has been consistently adhered to over the. years.

Illustrative cases are: Baltimore and Ohio Railroad Company v. State, Use of Hauer, 60 Md. 449, 467 (1883); The Agriculture and Mechanical Association of Washington County v. State, Use of Carty, 71 Md. 86, 100 , 18 A. 37 (1889); and State, Use of Parr v. Prince George’s County, 207 Md. 91, 107 , 113 A. 2d 397 (1955). The rule thus followed placed Maryland among a minority of jurisdictions in which no award could be made to parents of a deceased minor child for the loss, of benefits which they might reasonably have expected from the child after he reached his majority. Death of Infant — Measure of Damages, 14 A.L.R.2d 485 , 509-10 (1950); see, e.g., Clevenger v. Kern, 100 ⁸⁷ Ind. App. 581, 197 N. E. 731 (1935); Covell v. Colburn, 308 Mich. 240 , 13 N.W.2d 275 (1944). 5 A majority of the States, on the other hand, have held that an award to the parents of a deceased minor child may be based in part on the value of pecuniary benefits which, according to the evidence, the parents reasonably might have expected to receive from the child after he attained his majority. 14 A.L.R.2d at 506; see, e.g., Hord v. National Homeopathic Hospital, 102 F. Supp. 792 (D.D.C. 1952), aff'd, 204 F. 2d 397 (D.C. Cir. 1953); Caldwell v. Abernathy, 231 N. C. 692 , 58 S.E.2d 763 (1950); Seaboard Coast Line Railroad Co. v. Duncan, 123 Ga.

App. 479 , 181 S.E.2d 535 (1971) Two grounds were assigned in justification of the Maryland rule that in a wrongful death action a parent may only recover for the pecuniary loss suffered as a result of deprivation of the child’s services during the period from the date of the minor’s death to the date on which the child would have reached his or her majority. First, it was said that the parent is lawfully entitled to the services or earnings of his child only during the latter’s minority. Second, the claim was that it would be too speculative to contemplate the financial assistance which a minor might render the parents after he or she had reached majority. The Court of Appeals adverted to those two reasons in State, Use of Strepay v. Cohen, 116 Md. 682, 688-89 , 172 A. 274 (1934), observing that: “During infancy the parent is entitled to the services and earnings of the minor, who has no capacity to contract nor right to leave the custody and control of the parent, but is subject to parental authority until the day of his majority.

His status being thus fixed by law during his minority, what the child may be able or willing to do, when infancy ends, and the right arises to leave the custody and control of the parent and act independently with ⁸⁸ respect to contract, property, domicile, marriage, and the affairs of life, cannot be predicted from practical experience with any reasonable degree of certainty, and therefore what the minor will do on his majority towards the financial assistance or service' of his parent is necessarily speculative, and so can afford no reasonable basis for the estimate of pecuniary compensation. The reason, therefore, assigned by the Maryland decisions for the refusal to permit a recovery for what a minor will do, after his majority to assist his parent, is that the prospective assistance or service is essentially speculative.”(Emphasis added.) There has been considerable criticism of the minority rule which limits pecuniary benefits in the case of the wrongful death of a minor to the period when the child would have reached his majority. Prosser, Torts, 909 (4th Ed. 1971). Strict application of the minority rule often may make it difficult to secure more than a nominal recovery in the case of the death of a minor child, since the jury would be permitted to offset the anticipated services and contributions of the minor with the costs of rearing the child.

As one critical court stated, “to award more than nominal damages in every case where we limit damages to the loss of a minor child’s earnings above the cost of his support and maintenance, is an affront to reason and logic.” Lockhart v. Besel, 426 P. 2d 605, 609 (Wash. 1967). 6 Until passage of the 1969 amendment involved in this litigation, Maryland also was among those jurisdictions which limited recovery for the wrongful death of a minor to pecuniary losses alone. 14 A.L.R.2d at 492; American Railroad Co. of Porto Rico v. Didricksen, 227 U. S. 145, 149-50 (1913). Under this view, which apparently remains the majority rule, no award could be made for mental anguish, grief, sentimental loss or the sentimental value of ⁸⁹ the deceased child to its parents. 14 A.L.R.2d at 495; see, e.g., Wright v. Eastern Live Poultry Co., 19 Conn. Super. 312, 112 A. 2d 895 (1955); Hudson v. Cole, 102 Ga. App. 300 , 115 S.E.2d 825 (1960); Williams v. Dowling, 318 F. 2d 642, 644 (3rd Cir. 1963).

In Maryland, the earliest decision on the particular point is Coughlan, supra. There, the Court of Appeals had before it the question of whether a mother should be compensated for the mental suffering which she experienced as a result of the death of her child. In denying the right to recover such damages, the Court reviewed the English counterparts of the Maryland wrongful death statute, finding that “the title and language of the Act of Assembly of this State are almost literally the same with those of English statutes.” Coughlan, supra at 106 . The Court quoted the words of Coleridge, J., in Blake v. R. R. Co., 10 Eng.

L. & E. 467, as cited in Redfield’s notes: “The title of the Act is for compensating families of persons, etc., not for solacing their wounded feelings.” * * * By the terms of the Act, quoting the second section, ‘the measure of damages is not the loss or suffering of the deceased, but the injury resulting from his death, to his family.’ This language seems more appropriate to a loss of which some estimate may be made, than an ‘indefinite sum, independent of all pecuniary estimates, to soothe the feelings, and the decision of the amount strongly tends to the same conclusion.” Id. (emphasis added). Continuing criticism leveled against the refusal to permit compensation for mental anguish and pain and suffering which so often attends the death of a child, spouse or parent, has led several States in recent years to change their statutes so as to permit recovery for mental anguish and related non-pecuniary damages. 7 Even in jurisdictions where ⁹⁰ damages for mental anguish, sentimental loss, etc., may not be recovered, courts have upheld substantial verdicts in cases where it was “very evident that the jury had taken the bull by the horns and in reality [had]... compensated for the prohibited sentimental aspects of the family relationship . ..Prosser, supra at 909. See, e.g., National Homeopathic Hospital, supra, where an award of $17,000 in the case of the negligent death of a 3 day old baby was upheld.

Nevertheless, prior to the 1969 Session of the General Assembly, Maryland continued to restrict the damages recoverable in the case of the wrongful death of a minor child solely to “pecuniary loss,” i.e., services and contributions which could be expected during the period from the child’s death to the date he or she became twenty-one, minus the cost of rearing the child during that period. No recovery was permitted for any other type of alleged damages, including mental anguish, pain and suffering, loss of society and related non-pecuniary damages or solatium. The basis of the Maryland rule and the reason for the exclusion of all but “pecuniary loss” as a measure of recovery in the death of a minor child was the alleged speculative or conjectural nature of other types of damages. In 1969 the Maryland General Assembly, responding to the increasing criticism of the strict “pecuniary loss” rule, enacted Section 4(b) of Article 67, providing that damages awarded by a jury in the case of the wrongful death of a spouse or a minor child “shall not be limited or restricted to the ‘pecuniary loss’ or ‘pecuniary benefit’ rule, but may include damages for mental anguish, emotional pain and suffering,” etc. (Emphasis added.) As the preamble of the amendatory statute makes clear, 8 the Legislature wished to ⁹¹ change the measure of damages resulting from strict application of the “pecuniary loss” or “pecuniary benefit” rule in the case of wrongful death.

As the result of the , enactment of Section 4(b), it can no longer be argued that damages for mental anguish, pain and suffering, loss of society, companionship and the other categories of solatium enumerated in the statute are too speculative in the eyes of the law to permit their recovery in a suit by a spouse or a parent. Both in its text and in its purpose, Section 4(b) makes it clear that the “pecuniary loss” rule is no longer controlling as a basis or measure of recovery when the parents of a minor child sue under the wrongful death statute. To that extent, the Coughlan case and the