Conklin v. Schillinger

⁵³ Barnes, J., delivered the opinion of the Court. In the personal injury case involved in this appeal, the appellants, Alfred R. Conklin and wife, who were plaintiffs below, challenge the power of the Circuit Court for Prince George’s County (Parker, J.) to order a new trial solely because of the size of the verdict of the jury and, assuming that such power exists, they contend that the trial court abused its discretion in that regard. They also contend that they were entitled to have the jury consider the question of punitive damages. The Conklins filed a declaration, containing five counts, to recover damages resulting from injuries caused by the use by the defendant Schillinger of his automobile on January 22, 1966.

The First Count sought punitive damages in the amount of $100,000. The defendant demurred to this Count and his demurrer was sustained by the trial court without leave to amend. Count Two was for recovery for medical and hospital expenses and resulted in a verdict of the jury for $2,700. The Third Count was for personal injuries to the husband, Mr. Conklin, and a jury verdict for $2,300 was returned on this Count.

Count Four was for loss of consortium and a verdict of $5,000 was returned on this Count. The Fifth Count, for personal injuries of the wife, Mrs. Conklin, originally contained an ad damnum clause claiming $100,000, which, however, was amended in an Amended Declaration filed with the consent of counsel for the defendant-appellee Schillinger to increase the amount claimed to $250,000. The verdict of the jury on Count Five of the Amended Declaration was for $100,000. The defendant-appellee Schillinger sought a new trial, limited to the amount of damages on Count Five alone.

A new trial was granted on this Count on damages alone, the trial court being of the opinion that the verdict of $100,000 on this count was “so excessive as to shock the conscience of the Court” and that it was based upon passion, the jury in effect having attempted to punish the defendant because of the grossly negligent manner that caused the accident. Upon the sec ⁵⁴ ond trial on Count Five, the jury found a verdict for $25,-000. The second jury was informed that the claims in Counts Two, Three and Four had been resolved in a prior trial but that jury was not told of the amounts of any of the verdicts in the first trial. The evidence in the first trial indicated that on Saturday, January 22, 1966, the Conklins had gone to see the races at Bowie in Prince George’s County.

The husband was a young man (24 years of age at the time of the accident) in the naval service, stationed in Washington. He and Mrs. Conklin lived in Virginia. They had attended the races at Bowie once previously about a year before the day of the accident. Some wet snow had fallen earlier in the afternoon, but apparently, it was not snowing when the Conklins left the track in their automobile at approximately 4:00 P.M., before the last race.

When they left the track, they saw a State Policeman stationed at the intersections of Race Track Road and Maryland Route 450. Mr. Conklin was driving the automobile; his wife was in the front right-hand seat. Race Track Road was a one-way, two-lane road and the Conklins’ automobile was in the left lane. At the intersection with Route 450, the State trooper directed automobiles in the right lane to turn right and in the left lane to turn left.

Mr. Conklin obeyed the direction and turned left on. Route 450; After proceeding to the intersection of Route 450 with Maryland Route 3, Mr. Conklin realized that he was going in the wrong direction to get to Washington, D. C., turned his car around and came back on Route 450 toward Washington. The traffic in the opposite direction was bumper to bumper and was moving at approximately five to ten miles per hour from the race track. While proceeding at approximately 30 to 35 miles per hour in a ‘50 mile zone, in the right lane of Route 450, up the incline of a hill, the Cadillac of the defendant Schillinger, operated by him, suddenly loomed ahead at the crest of the hill on the wrong side of the road and Mr. Conklin’s efforts to pull to the right could not avoid the collision.

Mr. Schillinger had pulled out into the wrong lane and ⁵⁵ proceeded up the hill at approximately 40 miles per hour, according to one witness, past the stopped traffic in his proper lane. The heavy traffic prevented Mr. Schillinger from pulling back into his proper lane in the event of oncoming traffic. The Conklins had their lights on, but Mr. Schillinger did not have his lights on. Mr. Schillinger estimated that his speed was between 25 and 30 miles per hour.

He stated that he had been going to the Bowie races for some 20 years and that on every prior occasion the traffic had been one-way where the accident happened. He testified that he drove in the left-hand lane because no one stopped him and because of his prior experience, he assumed it was one-way. Mr. Schillinger’s father-in-law was on the front seat with him. His wife and his sister-in-law were in the rear seat.

Mr. Conklin was knocked unconscious as a result of the collision. Mrs. Conklin was thrown through the windshield of the Conklin car. She suffered multiple cuts and lacerations which caused profuse bleeding. The two major facial wounds were described in the operative note of the plastic surgeon the day following the accident, as follows: “The patient had a laceration which started in the left cheek opposite the ala of the nose.

It went medially across the anterior third of the cheek and into the left nasal cavity near the floor of the nose. This was of bone depth in the center and was of muscle depth through the rest of its extent. There was a rather ragged trap door laceration of the upper left forehead, which was of bone depth in the center. This was about three inches in diamater [sic] and extended around onto the temple to some extent.” The scar from the operation was quite red and elongated for some time after the operation causing Mrs. Conklin to be self-conscious because people were looking at it.

This scar had diminished at the time of the trial but her nostril was somewhat distorted. Also as a result of the accident, there was a sprain of ⁵⁶ the muscles and ligaments in Mrs. Conklin’s cervical spine. According to Dr. Leo B. Van Herpe, an orthopedic surgeon, who testified for Mrs. Conklin, there were fractures of the transverse processes of the second, third, fourth and fifth lumbar vertebrae on the left side where the quadratus lumborum muscle is attached, the fractures resulting from a violent twisting of the body. This cervical injury healed ultimately without complications.

In addition to the original severe pain, Mrs. Conklin suffered intermittent back pains to the date of trial. Mrs. Conklin suffered a broken left arm at the time of the impact for the treatment of which she received physicál therapy for approximately three weeks after the cast was removed. The arm ultimately healed without the necessity of a bone graft. At the time of the trial she still suffered pain in the left arm when she carried a heavy bundle without support and had slight aches when the weather changed.

There was also a fracture of Mrs. Conklin’s left ring finger resulting from the accident. There was a nonunion of this fracture, which prevented Mrs. Conklin from having any punch with her fourth left finger and from properly typing. This resulted in a five to ten percent partial impairment of the use of her left hand in the opinion of one of Mrs. Conklin’s medical experts. Mrs. Conklin also suffered injury to her left knee as a result of the accident.

The cruciate ligaments, both anterior and posterior, were ruptured, which in the opinion of one of her medical experts, resulted in a permanent disability in her left leg of 20%. A course of daily exercises was prescribed to build up the quadriceps muscle to lend some stability to the left knee. Her medical expert was of the opinion that the knee would worsen with the passage of time resulting from early arthritis. In his opinion, she should continue the prescribed exercises for the rest of her life.

Her life expectancy is 56.5 years, Mrs. Conklin being 23 years of age when the accident occurred. Mrs. Conklin described in detail the serious páins she ⁵⁷ suffered at the time of the accident when she regained consciousness and other pains resulting from the injuries already mentioned. Her total medical expenses at the time of the first trial amounted to $2,009.24. She was in the hospital for one week and was out of work for one month, for which she claimed special damages of $599.38.

Her hospitalization ended about February 1, 1966, after which she was seen on an out-patient basis at Bethesda Naval Hospital, being treated six times beginning February 17, 1966, and extending to March, 1966. She was referred to Dr. Van Herpe by her counsel, who thereafter treated her and was her principal medical witness in the case. Shortly before trial, Mrs. Conklin was examined by Dr. Everett J. Gordon who testified for Mr. Schillinger. Doctor Gordon testified that as a result of his examination of Mrs. Conklin in regard to the injury to her cervical spine, he found a good range of motion of the cervical spine and neck; in regard to the facture of the left forearm, he found the fracture in a good position and with a very good bony union with a full range of motion of the left forearm; in regard to the fracture of the distal end of the ring finger, there was a full range of motion of all joints of the finger, the nail was hard and had regenerated; in connection with the back injury, Mrs. Conklin could touch her fingers to the floor, had a full range of side motion, there being no tenderness or muscle spasm and no sign of nerve compression or irritation and in his opinion, she had recovered from this injury; in regard to the alleged fractures of the transverse processes, the small rib-like projections had healed well and the x-rays taken at the Prince George’s Hospital following the accident indicated “no fracture” of the transverse processes; and, finally, in regard to the injury to the left knee, there was a full range of motion in both knees, there was no swelling, no fluid, no crepitus or motion, no sign of torn cartilages, the kneecaps moving freely in a normal manner, without abnormal motion and the collateral ligaments being intact, the x-rays of the knees in ⁵⁸ dicating that the left knee was normal and there was no atrophy of the muscles of the legs or thighs indicating any disability.

We now turn to the three questions which were raised in the trial court and briefed and argued before us, to which reference has already been made. (1) The Conklins contend that the trial court had no power to grant a new trial on Count Five on the ground of excessive damages. The thrust of their argument is that a correct evaluation of the English decisions prior to 1776 indicates that no such power existed at common law in English trial courts. Hence when Maryland adopted its original Constitution in 1776 providing in its Declaration of Rights that the “inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law * * *” (this provision having been continued in all subsequent Constitutions of Maryland — See Article 5 of the Declaration of Rights in the Maryland Constitution of 1867), the trial courts in Maryland were given no such power and the attempt to exercise such power violates the constitutional right to trial by jury.

We do not agree with this argument for several reasons. First, our examination of the English decisions prior to 1776 does not indicate to us that the English Courts had uniformly held that they had no power to grant new trials in tort cases on the ground that the damages were excessive, although there is some language in a few of the cases which rather indicates this. It appears to us that a consideration of all of the English decisions prior to 1776 on this question establishes that the substantial majority of those decisions reflect the opinion that there was power in the English Courts to grant such a new trial. It should be kept in mind, in limine, that the English practice in regard to all motions for new trials differed during and prior to 1776 from the Maryland practice and the practice in most of the Colonies» Circuit ⁵⁹ Judge Medina, speaking for the United States Court of Appeals for the Second Circuit, in Dagnello v. Long Island Railroad Co., 289 F. 2d 797 (1961) aptly summarized the then English practice as follows: “Juries were regularly used in the courts of King’s Bench, Common Pleas and Exchequer.

But motions for new trial were not addressed to the judges who presided over the trials. Instead, such motions were made at Westminster and heard en banc, by four of the judges, and the trial judge in a particular case might or might not be one of the four. There was no appeal on the point from the decision of the judges en banc.” ( 289 F. 2d at 804 ) The case of Wood v. Gunston, Style 466 (1655) has been cited as the initial case establishing the practice of granting new trials, but Lord Chief Justice Mansfield in Bright v. Eynon, 1 Burr. 390 (1757) at 394 stated that, “It is not true ‘that no new trials were granted before 1655;’ ” and explained that, “The reason why this matter cannot be traced further back, is, ‘That the old report-books do not give any accounts of determinations made by the Court upon motions.’ ” Lord Chief Justice Kenyon in Duberley v. Gunning, 4 T.R. 651 (1792) explained the development of the practice of granting new trials as follows: “The ancient method of correcting the errors of juries was by the harsh proceeding of at-taint, which was productive of no remedy to the aggrieved party; and therefore the Courts did wisely to rid themselves of such an inconvenience in the administration of justice, by the milder remedy of setting aside an erroneous verdict, and sending the case back to the revision of another jury. This is by no means encroaching upon the jurisdiction of the jury, nor drawing the question to the examination of ⁶⁰ a different tribunal from that to which the constitution has referred it; for it is not substituting a different judgment in the place of that which has been pronounced, but requiring the same jurisdiction to reconsider that opinion which appears to be erroneous.

Without this general power in the Court, injustice would be done in many cases.” (4 T.R. at 654-55) Although the power of the English Courts to grant new trials in jury cases was firmly established prior to 1655, the grounds upon which the power would be exercised slowly developed over the ensuing years. Lord Mansfield said in 1757 in Bright v. Eynon, supra: “Indeed, for a good while after this time, the granting of new trials was holden to a degree of strictness, so intolerable, that it drove the parties into a court of equity, to have, in effect, a new trial at law, of a mere legal question; because the verdict, in justice, under all the circumstances, ought not to conclude; and many bills have been retained upon this ground; and the question tried over again at law, under the direction of a court of equity. And therefore of late years, the courts of law have gone more liberally into the granting of new trials, according to the circumstances of the respective cases.” (1 Burr, at 394-95) The granting of a new trial because of an excessive jury verdict appears to have been an area of the common law in the early stages of judicial development. Wood v. Gunston, Style 466 (1655), supra, Ash v. Ash, Comb. 357 (1697) and Chambers v. Robinson, 1 Stra. 691 (1726) were early cases in this development and seem to support the granting of a new trial because of a jury verdict for excessive damages.

See also 5 Bacon, Abridgement 248 and 3 W. Blackstone, Commentaries ³⁸⁸. (The lectures from which the ⁶¹ Commentaries were compiled were delivered at Oxford, England in 1758 by Sir William Blackstone, Vinerian Professor.) In 1764, however, the King’s Bench in Beardmore v. Carrington, 2 Wils. K.B. 244, stated that it was not yet ready to grant a new trial in a tort case solely for the reason of excessive damages in the verdict. That Court indicated that it believed that the Wood and Ash cases, supra, were really decided on the grounds of misconduct of the jury and that the decision in the Chambers case, supra, to grant a new trial in a tort case solely because of excessive damages was a bad precedent and should not be followed.

In Beardmore, however, the King’s Bench stated: “We desired to be understood that this court does not say, or lay down any rule that there never can happen a case of such excessive damages in tort where the court may not grant a new trial; but in that case the damages must be monstrous and enormous indeed, and such as all mankind must be ready to exclaim against, at first blush.” (2 Wils. K.B. at 250) In Duberley v. Gunning, 4 T.R. 651 (1792) a tort action involving damages for criminal conversation, there was a difference of opinion in the King’s Bench as to whether or not a new trial should be granted solely because of the excessive damages awarded by the jury. Lord Chief Justice Kenyon was of the opinion that no new trial should be granted because he could not find any standard by which he could ascertain the excess and stated that: “Knowing therefore no instance in which a new trial has ever been granted in such a case, upon the ground of excessive damages * * * I have not courage enough to make the first precedent of granting new trials under such circumstances as the present.” (4 T.R. at 656) ⁶² Justice Buller was of the opinion that the new trial should be granted. He stated: “* * * I do not apprehend that the power of the Court to grant new trials in any case, if a proper ground be laid for it, has been denied even at the bar.

It is certainly established by a variety of authorities in general terms, without making any exception whatever: and this power is repeatedly exercised in cases where the standard for damages is full as uncertain as in the present case. Every case must stand on its own particular circumstances: there is no laying down any fixed rule for ascertaining the damages in many instances. New trials have been granted from the year 1655, at least as appears by a case of that date * * * There are besides many old cases which shew that the instance of the exercise of this power in 1655 was not the first., * * * I cannot bring my mind to say that there shall not be a new trial. Before we can come to such a determination, we must blot out every expression in the books relative to this subject; and in many of them it is expressly said, That the Court may grant a new trial for excessive damages.

I agree that there must be facts for the Court to proceed upon, in ascertaining the excess of damages, and granting a new trial on that account: but there are many such facts in this case.” (4 T.R. 657-658) A year after the decision in Duberley, however, Lord Kenyon who had been with the majority, apparently had a change of mind and was of the opinion that a new trial in a tort case seeking damages for assault and battery, Jones v. Sparrow, 5 T.R. 257 (1793) should be granted solely on the ground of an excessive jury verdict. In referring to Duberley, he stated : “* * * although the case of Duberley v. Gunning was decided after a very full discussion of ⁶³ the subject, the Court were not unanimous * * * But, whether rightly or not decided, that is a case sui generis, and cannot govern the present.” (5 T.R. at 257) Three years after the decision of the King’s Bench in Jones, supra,, the Court of Exchequer in Goldsmith v. Lord Sefton, 3 Anst. 808 (1796) reaffirmed that the common law of England had established that new trials would be granted in tort cases solely because of an excessive jury verdict. Chief Baron Macdonald stated: “I can have no doubt that the power of the Court extends to granting a new trial in all cases; the distinction arises only from the difficulty in some of exercising this authority. In matters of contract, the Court have, in general, a certain principle, by which they can determine whether the verdict is proportioned to the injury or not.

In matters of tort this is more difficult, and therefore the Courts never interpose to set aside a verdict, except upon a ‘glaring case of outrageous damages,’ as is observed by the Lord Ch. J., afterwards Lord Ccrnden, in Huckle v. Money, 2 Wils. 207. In Jones v. Sparrow the injury was much more serious than here, the damages not so great, yet the verdict was set aside. In most of the cases where it has been refused, the Court have said that they were not dissatisfied with the verdict, or at least there have been circumstances to warrant damages to nearly the extent given.

In Duberley v. Gunning, the new trial was refused by a majority of the Judges, on the ground that the nature of the injury, criminal conversation, rendered impossible all computation of the value of the satisfaction. “By the whole current of authorities, it appears that we are bound to protect a party where, by the improper warmth or worse pas ⁶⁴ sions of a jury, damages glaringly and outrageously great have been given against him. We cannot say what the damages ought to be, but can only send it for the investigation of another jury.” (3 Anst. at 809-810) Barons Hotham and Thomson in separate opinions concurred in the granting of the new trial. In summary, we are of the opinion that the majority of the English decisions prior to the adoption of the Maryland Constitution of 1776 indicated that power existed to grant new trials in tort cases upon the sole ground of a jury verdict for excessive damages and this opinion is confirmed by the English decisions rendered during the 20-year period following 1776. Secondly, the Maryland practice of granting a new trial by the trial judge in tort cases where the sole ground is an excessive verdict, unless the plaintiff remits the portion of the verdict which the trial court deems excessive, is well established.

We have held that this practice does not violate any constitutional rights of the defendant. In Turner v. Washington Suburban Sanitary Commission, 221 Md. 494 , 158 A. 2d 125 (1960), the Circuit Court for Montgomery County in an action at law to recover damages for trespass to real estate granted the defendant’s motion for a new trial unless the plaintiffs remitted $7,-230 of a verdict of $8,730. The plaintiffs filed the remittitur, but reserved and claimed a right to appeal from the judgment of the trial court denying the motion of the plaintiffs to enter judgment for the amount of the jury verdict and to insist that the Court enter judgment for such an amount. A final judgment was entered for $1,500 and costs from which judgment the plaintiffs appealed.

There was no cross appeal. In affirming the judgment, the Court held that no constitutional rights of the plaintiffs had been violated. Judge (later Chief Judge) Henderson, for the Court, stated: “To answer the contention that the court usurped the jury’s function, resort must be had ⁶⁵ to the appropriate rules of the common law at the time our first constitution was adopted. Knee v. Baltimore City Pass Ry.

Co., 87 Md. 623, 624, 633 . It would seem that the practice of remittitur was not unknown at that time. See Wayne, Damages (11th ed.), p. 635. It was recognized by Mr. Justice Story in Blunt v. Little, 3 Mason 102, 107 , and has been consistently upheld by the federal courts.

Indeed, it may be said that the practice is as much an incident and corrective of jury trial as the right of a trial court to set aside a verdict on the ground that it is against the evidence, or against the weight of the evidence. Cf. Snyder v. Cearfoss, 186 Md. 360, 368 . The plaintiff is not obliged to remit.

He has the option of accepting the alternative and trying the case again. As expressed by some of the commentators, the right to jury trial is a right to a ‘properly functioning’ jury.