Calder v. Levi

Parke, J., delivered the opinion of the Court. The plaintiff was driving her automobile southwardly on Cathedral Street, Baltimore, with her mother and a friend as guests. It was about noon on Saturday, April ²⁶³ 22nd, 1933, and travel was heavy. As she approached the intersection with Monument Street, the traffic signal showed red, and the southbound line of automobiles, in which the plaintiff was proceeding, slowed down and stopped in obedience to the signal, but the automobile immediately following the plaintiff’s automobile ran into the end of the plaintiff’s automobile.

As a result of the force of the impact, the plaintiff was thrust violently forward against the steering wheel, and was seriously injured. The testimony was conflicting with respect to whose negligence Was the cause of the accident, and the jury rendered a verdict for the defendant. On the entry of a judgment on the verdict, the plaintiff appealed. The nisi prius court granted all the prayers offered by the plaintiff and by the defendant.

While the plaintiff excepted to the granting of the defendant’s prayers, they will not be reviewed, because her brief does not assign any error in the court’s action on the prayers, and rests the appeal on the first ten exceptions to the rulings of the court on the evidence, and, also, on the action of the court in keeping the jury locked up, on a very hot day in a close room, until a verdict was found. Rule 39, see. 4, of the Rules of the Court of Appeals. According to the testimony on this record, the plaintiff was forty-five years old and in good health at the time of the accident. She had been teaching in the public schools of Baltimore for twenty-two years and, when she was injured, she was a capable and efficient teacher of English in a high school at a regular salary of $3,000 a year, which had been temporarily reduced to $2,700 on account of the fiscal stringency.

She lived with her widowed mother, and was the support of the family, which included a crippled brother and two small children. As a result of the accident she sustained physical injuries and nervous shock, which were followed by a highly nervous state that existed, with some improvement, at the trial of her action, and had prevented her from teaching. She was attended by the family physician from the day of the accident. ²⁶⁴ Three days after the accident, a doctor of osteopathy was called in to treat the plaintiff, with the consent of the family physician. The doctor of osteopathy was graduated from a school of osteopathy in 1904, took postgraduate courses and work, and passed the state board examination in Indiana which, according to the testimony, gave the same examination to applicants whether of the allopathic, homeopathic, or osteopathic schools.

After practicing two years in Indiana, the doctor came to Maryland, where she has practiced for twenty-eight years. From the beginning of her professional services on April 25th, 1933, to June 18th, 1934, the day of the trial, the osteopathist regularly attended the plaintiff, and her testimony disclosed a familiarity with the plaintiff’s physical condition and the symptoms of her nervous disorder. After testifying that the plaintiff’s condition would not permit her to teach or engage in any remunerative work, and stating the reasons for this conclusion, the witness was asked if she could state how long this incapacity would exist, and she replied that this future development “is really almost impossible for anyone to prognose.” The doctor was then asked to state, first, whether it was possible for her to say whether or not the patient had a permanent or temporary condition; and, secondly, if she could say whether the plaintiff would be able, if ever, to return to teaching. The refusal of the court to allow the witness to answer these two questions constitute the errors assigned by the first and second bills of exceptions.

Osteopathy as a system of treatment which is based on the theory that diseases are chiefly due to deranged mechanism of the bones, nerves, blood vessels, and other tissues, and-can-be remedied by manipulation of these parts,, has legislative sanction, and its practice is authorized by those having the prescribed qualifications. Code, art. 43, secs. 349-362. The testimony of the osteopathist brought the illness of the plaintiff within the domain of osteopathy, and she was qualified as its practitioner to express an opinion in a matter within her art, and with reference to conditions which she had either personally observed ²⁶⁵ or ascertained by exploratory investigation. O’Dell v. Barrett, 163 Md. 342, 346, 347 , 163 A. 191 .

However, the witness had stated that it was “almost impossible” to predict the duration of the plaintiff’s sickness, and she was, therefore, unable to give a prognosis except in the terms of the possible. It would have been error to permit these questions to be answered, because her previous testimony disclosed that her relevant and material knowledge of this subject had been previously exhausted. Expert testimony of a future consequence of a prior and subsisting injury as evidence of prospective damages must be in terms of the certain or probable and not of the possible. The sixth and eighth and tenth bills of exceptions were taken to questions which were not answered, and so do not present any question for determination on appeal.

It is true that these questions, after the interposition of another question, were repeated, but it was the repeated questions which were answered without objection, and the plaintiff must be held to have abandoned the objections. Later, in the course of his testimony, the same witness, in response to similar inquiries, gave testimony to the same effect, without any objection by the plaintiff. It follows that, even if these bills of exceptions could be considered, any error in the rulings would not be such prejudicial error as to cause a reversal. The seventh bill of exceptions presents the propriety of asking a specialist in nervous and mental diseases what, in his opinion, was the condition of the plaintiff immediately after the accident.

The witness had no personal knowledge of her condition at the time specified. He had, however, over a year after the accident, examined the plaintiff at the instance of the defendant; and he had received a history of the case and he had heard all the testimony at the trial. The question propounded involved the physical injuries received, as well as her mental and nervous state as the result of the accident. In the absence of any personal knowledge on this subject at the happening of the accident, the expert witness could only express an opinion on the assumption of the truth of the facts ²⁶⁶ in evidence, which would constitute a complete and consistent representation of that condition of the plaintiff with reference to which the expert’s opinion was desired.

The question asked was not hypothetical in form, and so was improperly framed, and should not have been allowed, and the answer was prejudicial to the plaintiff. The ninth bill of exception is to the testimony of another expert in neurology and psychiatry, who had been present in court during the trial of the case. After the witness had stated that he had an opinion as to whether or not the plaintiff was unconscious at any time after the accident, he was suffered to give that opinion in response to a question which required the witness to assume the truth of the testimony he had heard in court, disregarding the opinion of other witnesses and inferences based on them. The form of hypothetical question here employed has been used without disapproval in appropriate instances, but in this particular case, there was testimony on the part of the plaintiff tending to prove that she was unconscious after the accident, and testimony offered by the defendant to the effect that she was conscious.

It was impossible for her to be simultaneously conscious and unconscious, and so the truth must be one of the two versions. It was beyond the power of the witness to make the assumption required by the question and express an opinion. In order to answer the question in either way, he had to reject one version as untrue, and this choice compelled him to usurp the function of the jury and decide upon the credibility of witnesses and the weight of the evidence. The question was improperly framed and should have been disallowed.

Quimby v. Greenhawk, 166 Md. 335, 338-340 , 171 A. 59 . The remaining bills of exceptions are the third, fourth, and fifth, which challenge the propriety of the action of the nisi prim court in refusing to let the plaintiff testify. The plaintiff did not sit with her counsel, but sat outside the bar in one of the front seats provided in the body of the court room for witnesses and spectators. As the court was about to take its midday recess, counsel for ²⁶⁷ the defendant, for the purpose of the record, called the court’s attention to the fact that he had been informed that, when Dr. Gillis expressed the opinion that it was doubtful whether the plaintiff would return to her school in the fall, the plaintiff started to cry and fell against the person sitting next to her, and had to be taken out of the court room.

The presiding judge remarked that he had observed this behavior of the plaintiff, and, after recess, had a conference with counsel in chambers. At this stage of the trial, there was testimony in the case that the plaintiff had been rendered extremely nervous as a result of the accident. Her condition was manifested by excessive crying, by the frequent trembling of her body, by the jerking of her muscles, and.by the shaking of her arms and legs. When she would refer to her injury she would break down and sob.

The plaintiff had improved physically, and so had her nervous state, until three or four weeks before the trial, when these symptoms reappeared, as she had a great fear of going to court. Dr. Gillis, an expert in nervous diseases, had observed the numerous nervous reactions of the plaintiff while in court, and described them, stating “she has been frequently, almost constantly, moving her arms, rubbing the back of the seat, she has been combing her hair unnecessarily, she has been weeping at various times, two or three times, dropping over on the shoulder of some one sitting next to her, and she has had some jerking of the muscles, and some tremor.” The testimony further established that these manifestations of nervousness were not simulated, but were genuine and involuntary, and were similar to those previously shown by the plaintiff in her illness. The plaintiff was under her doctor’s treatment in order to fortify her for the trial. This treatment had continued for two weeks, and sedatives were being administered.

Dr. Gillis was asked whether the plaintiff was in physical condition to take the witness stand. His renly was: “She is in physical condition. That is, she is strong enough, there is no danger of her heart, or any ²⁶⁸ thing of that sort, there is no danger of any serious symptoms, but she is almost inevitably going to become very nervous on the witness stand and go through a lot of those curious jerking motions and so on, because she has done so many other times and she is very likely to do it now.” After this testimony had been given, the judge informed the doctor that the case lacked one element of proof, which was whether the plaintiff’s automobile had been in any other accident within two weeks, and inquired whether it would be reasonably likely that the plaintiff, if put on the stand to answer that one question, put to her clearly and definitely, could answer without much likelihood of an attack of nervousness. The doctor’s reply was: “I think so, if she were told she would be asked only one question, or be told that she would be asked that particular question.

What she seemed to fear was a long cross-examination.” When the sitting of the court was resumed, the court and counsel retired to the judge’s chambers and counsel for the plaintiff advised the court that they wished to call the plaintiff as a witness in her own behalf, and to question her particularly with reference to proving by her (1) that before stopping her automobile she put out her hand as a warning to drivers behind her, and that her car was standing still for an appreciable length of time before it was struck from the rear, during which she had a conversation with her mother relative to the next place of stopping, and (2) that the automobile had been driven without accident by the plaintiff and her brother-in-law for a period of two weeks immediately prior to the collision for which the action is brought. The counsel for the defendant made no objection to the offer of the plaintiff as a witness, but, in deference to a suggestion of the court, stated that he was willing to stipulate that she would testify to the use of her automobile for the period of two weeks before the injury without accident, but that he was not willing to stipulate in regard to her putting out her hand and the other details of the accident. ²⁶⁹ In this situation, the record shows that the judge stated that he had observed from the bench the demeanor of the plaintiff in the court room. He had entered in the record what he had seen. His observations of the plaintiff’s behavior were similar to those described by Dr. Gillis in his testimony, but somewhat more detailed.

In addition, the court had it set down that he had noticed that the jurors had, for the most part, their attention concentrated on counsel and witnesses, and very seldom had a juror looked towards that part of the court room in which the plaintiff sat. It was further noted that one of the plaintiff’s counsel was strongly of the opinion that she could testify without collapse or creating a scene, but that her other counsel was doubtful. These particulars gave the substance of the conference in chambers, and on the return to the court room the judge addressed the jury in these words: “There has been a conference in chambers and the upshot of it is this: Counsel for both sides want to put the plaintiff on the witness stand and the plaintiff is entirely willing to go on the stand, and wants to do so, and thinks she has a right to do so. One of the things to which she would testify, if she did go on the‘witness stand, is (and I say this because counsel for the defendant has authorized me to say that he is willing to admit that she would testify to that effect if she went on the stand, although he doesn’t admit that it is true) that for a period of about two weeks before the accident which is the basis of this suit the only persons who drove the plaintiff’s automobile were the plaintiff herself and her brother-in-law, Mr. Peeling, and the plaintiff would testify that during that period the automobile was in no accident of any kind other than the accident which is the basis of this suit. * * * Now, with that agreement in the record, I assume the responsibility of deciding that the plaintiff shall riot be permitted to be sworn as a witness and testify, and the reason for that decision I think has already been made clear to you in the questions I asked Dr. Gillis when he was on the stand this morning.” ²⁷⁰ The refusal of the court to permit the plaintiff to testify was put upon the ground that it was for the purpose of securing an orderly trial.

The theory that it was error for the judge to deny the plaintiff the right to testify, and to make the above statement to the jury, is presented by the third and fourth bills of exceptions. ’ After all of the other testimony in chief on the part of the plaintiff had been produced, the plaintiff was again offered for the purpose of proving the facts with reference to her travel by railway, after the accident, from Baltimore to the Adirondacks, and the nature and object of her visit to a friend, and the physical benefit of her friend’s nursing. The testimony was material. In declining to allow the plaintiff to testify, the nisi prius judge said: “While the court feels that all the aforegoing offer of proof is relevant to the case, and may be of considerable importance to the plaintiff, nevertheless the court has been observing the plaintiff since the beginning of proceedings this afternoon, following the somewhat lengthy conference in chamber hereinbefore adverted to, and has observed that during a large part of this time the plaintiff has been in a state of partial collapse, with her head resting either on the back of the bench or in the lap of her sister; and that at other times she has manifested extreme nervousness, combing her hair and twitching as above described; for these reasons and for the reasons hereinbefore stated, the court feels compelled to adhere to his former position, and to refuse to allow the plaintiff to be called as a witness in her own behalf.” The exception to this ruling is the basis of the fifth bill of exceptions. , As the right of the plaintiff to testify was determined with reference to the situation which existed at the time of the rulings, those exceptions must be considered with regard to the circumstances of the case at the time of the rulings, and not at some later stage. It is unnecessary to state the later conduct of the plaintiff, as observed by the court under different conditions.

The defendant, however, does urge upon the court that, if there were error in ²⁷¹ declining to let the plaintiff testify, it was harmless error, because the plaintiff suffered no prejudice, since, according to the defendant’s brief and argument, either all questions bearing on liability and injuries were adequately covered by two or more witnesses for the plaintiff, or stipulations of fact relative to plaintiff’s testimony were admitted by the defendant, who waived right of cross-examination, and were read to the jury. If these reasons are sound, there would be no occasion for this tribunal to pass upon the three bills of exceptions last mentioned. The first reason assigned cannot prevail, on several grounds. The plaintiff was the driver of her automobile at the time of the accident, and sustained the injury and suffered personally its consequences.

She was an actor witness, and had an objective and subjective knowledge that was far superior to any other witness, who could be no more than a relator of what had been observed with reference to the acts of the plaintiff when the accident occurred, and the course, and subsequent sensations, of the injuries inflicted. In these respects the plaintiff’s testimony was primary, and of such a different nature on certain fundamental points of inquiry that it could not be classed as cumulative, in any accurate sense, with respect to the testimony of any other witness relative to these points. Again, there was no testimony by any witness of the nature of the visit of the plaintiff to her friend in New York, and her life and the treatment there for her injuries during the five weeks she remained. Nor is the second reason advanced tenable.

When the attorneys for the plaintiff informed the court in chambers that they desired to put the plaintiff bn the stand as a witness in her own behalf, and to interrogate her particularly with reference to their proffer to prove by her (1) that before stopping her car, she had put out her hand as a warning to drivers behind her, and that her car was standing still for an appreciable length of time before it was struck from the rear, during