Havens v. Schaffer

Bruñe, C. J., delivered the opinion of the Court. The appellant, William Edward Havens, who was an infant at the time of the automobile accident here involved, and his father, Vernon Leonard Havens, were plaintiffs in a suit against the appellee, John Albert Schaffer, for damages for personal injuries sustained by the appellant and for medical and hospital expenses incurred by his father as a result of an automobile collision. The trial resulted in the jury returning a verdict for “the plaintiff” and finding the damages in favor of the father in the amount of $3,112.30 and finding no damages in favor of the son. Judgments were entered in accordance with these findings, and the son (only) appeals.

We may assume that if the jury found a verdict in favor ³²⁵ of the son, but did not make a finding of any substantial damages in his favor, the verdict as to the son should have been for nominal damages of one cent. Coca-Cola Bottling Works v. Catron, 186 Md. 156 , 46 A. 2d 303 ; Salisbury Coca-Cola Bottling Co. v. Lowe, 176 Md. 230 , 4 A. 2d 440 ; Mason v. Wrightson, 205 Md. 481 , 109 A. 2d 128 ; Restatement, Torts, § 907. Doubtless because of the triviality in amount, reversal is not asked in this court on that account, and the matter is accordingly not before us for decision. The appeal is founded upon the contention that the trial court improperly instructed the jury on contributory negligence on the part of the appellant, that there was no evidence to support an instruction on that subject and that the effect of the granting of such an instruction was to prejudice the jury against the appellant on the question of damages.

The medical testimony is not included in the printed record. The court’s instructions indicate that the medical and hospital expenses incurred by the appellant’s father were in the exact amount for which the jury returned a verdict in his favor, and that the appellant, who had reached the age of twenty-one years by the time of trial, would have to expend $850 for some further treatment, if he should desire to take it. If the verdict was inadequate, that could have served as the basis of a motion for a new trial (II Poe, Pleading and Practice (5th Ed.), §§ 335,' 345, 346, 39 Am. Jur., New Trial, §§ 145, 147).

Likewise, a defect in the form of the verdict could have been attacked by a motion in arrest of judgment, which would be appealable (I Poe, op. cit. § 761, Davis v. Bd. of Education of Anne Arundel County, 168 Md. 74 , 176 A. 878 ); or it could have been attacked by a motion for a new trial (Davis v. Bd. of Education of Anne Arundel County, supra). No motion in arrest or motion for a new trial was made. Since the verdict was for the plaintiff, it seems that the instruction with regard to contributory negligence was harmless and, hence, even if it was erroneous, it would not warrant a reversal. McKay v. Paulson, 211 Md. 90 , 126 A. 2d 296 .

Beyond this, on the