Industrial Service Co. v. State Ex Rel. Bryant

Johnson, J., delivered the opinion of the Court. Hilda Bryant, aged forty-one, departed this life on August, 19th 1937, leaving surviving her a husband Frederick E. Bryant, and six children, the following of whom are infants: Ethel Mattie Bryant, Wylie Lee Bryant, Dorothy Una Bryant, and Jane Hilda Bryant. The husband and children contended that Mrs. Bryant’s death was caused by the negligence and wrongful act of the servant and agent of the Industrial Service Company, a body corporate, acting within the scope of his employment. Accordingly, under the provisions of Code Article 67, suit was instituted in the name of the State, ⁶²⁸ for the use of the surviving husband and infants, against the corporation, in the Superior Court of Baltimore City, pleas were filed to the declaration, and at the first trial a verdict was rendered for the defendant under the instructions of the court.

Two days later plaintiffs moved for a new trial, and that motion was granted, and subsequently, upon a suggestion of removal, the case was sent to the Baltimore City Court for trial, which was held January 23rd, 1939, and resulted in a verdict in favor of the equitable plaintiffs for §9720, which was duly apportioned between them. Before that judgment became absolute, the defendant filed a motion for a new trial, and after a hearing thereon that motion was granted, unless the plaintiffs filed a remittitur of §3720 of the original verdict, deducted proportionately from the amounts allowed the various equitable plaintiffs by the verdict. That remittitur was filed, whereupon judgment on the verdict absolute in their favor of $6000 was entered as apportioned, and from that judgment, the present appeal is taken. Three exceptions, reserved by appellant during the course of the trial to the rulings of the trial court, are relied upon to support a reversal of the jugdment.

Two of these relate to rulings on evidence, while the third pertains to rulings upon the prayers. During our consideration of the evidence, reference to those exceptions will be made in the order in which, during the course of the trial, they were reserved. Specifically, with reference to the third exception, the contention is advanced by appellant that the trial court committed error (1) in refusing to grant its A prayer instructing the jury that although they found a verdict for the equitable plaintiffs, they could hot assess any sum whatsoever as damages, because no evidence had been adduced from which it could be found that they had suffered any pecuniary loss as a result of Hilda Bryant’s death, and (2) in refusing its B prayer directing the jury to find a verdict for the defendant, because of an alleged legal insufficiency of evidence to entitle the equitable plain ⁶²⁹ tiffs to recover. Since those instructions were offered at the conclusion of the entire case, and after evidence had been submitted by both of the parties, it becomes necessary to review and analyze that evidence for the purpose of ascertaining the correctness of those rulings.

Counsel for appellees, both in their brief and oral argument before this court, devoted much effort in discussing matters pertaining to the present and past financial situation of Frederick E. Bryant, which were entirely unjustified, inasmuch as no proof touching those matters is contained in the record. However, on the whole record, a legitimate inference does arise that Bryant was rather impecunious, for at various times he had secured loans from appellant, and on August 5th, payments upon one of those were in arrears. A careful consideration of the record discloses that from the testimony given by lay witnesses, the jurors could have found that John B. Cain, Jr., was appellant’s agent, but his duties did not require him to collect money from defaulting borrowers, for as stated by him, “My job was to jack them up, make them come to Baltimore and make their payments and to find out why they were in arrears”; that on August 12th, 1937, he appeared at the Bryant home and greatly disturbed Bryant’s wife, because she had not paid his employer; that, over her protest, he sat on the floor of the home until he had exacted a promise from Mrs. Bryant to come to Baltimore and make payments early in the following week. This she failed to do, because she was without funds, and seven days later, while the mother and children were having lunch, he reappeared, and when Mrs. Bryant, who had partially opened the door, noticed who he was, she attempted to close it, but he stuck his foot in the open space, endeavoring to discuss the loan with her.

She told him she had not been in, because she did not have any money, and requested him to leave, and attempted to push him out of the door, whereupon he slapped her in the face, and told her that she did have the money, because her husband and her son were working. The en ⁶³⁰ counter between her and Cain continued, and finally he withdrew to the grape arbor in the rear of the house and was pursued by her; he not only inflicted wounds upon her shoulders, arms and wrists but twisted her wrists so hard that he forced her to her knees, which resulted in tearing the skin therefrom. Eventually he got into his automobile and drove away, after first laughing at and insulting her daughter who remonstrated with him. From that time on Mrs. Bryant was greatly agitated, nervous, upset, and suffered intense pain.

Her body shook violently, she cried much of the time and continued to chew her finger nails. On the evening of that day, accompanied by her husband, she went before a justice of the peace and swore out a warrant for Cain, charging him with having assaulted and beaten her. With her husband, she returned to the office of the magistrate five days later, at which time Cain was convicted, but at the trial she experienced great difficulty in testifying, for when she recalled the events of the twelfth, she would choke up, and while her statements were not contradictory, she simply could not detail the events in a coherent manner. Upon their return to the Bryant home, after the trial, they were compelled to stop on the way because of a flat tire, and she insisted that they turn back, fearing Cain would come out of the woodland and attack her.

Although at times she seemed somewhat quiet, when Cain’s name was mentioned she was as agitated as ever and continued to cry, shake her body, and bite her nails. On the evening of August 12th, she was so uncomfortable that neither she nor her husband got any sleep whatever, and the following morning Dr. Lipsky was called in. On the evening of August 19th, she seemed quiescent, and she and her husband were sitting upon the porch listening to the radio, when an automobile was driven to the house by a Mr. Sutton, appellant’s manager, who got out, went upon the porch and spoke to them, saying he regretted very much that Cain’s conduct had caused him to be arrested and he wished to ascertain the details. Bryant started to give his version of what occurred, and ⁶³¹ Sutton insisted that his wife do the talking.

Bryant told him that, whenever she attempted to discuss it, she became greatly agitated and he preferred for her not to discuss the matter. He (Bryant) thereupon proceeded to describe Cain’s conduct, especially on August 12th. During this time Mrs. Bryant continued to sit in her chair and finally, after speaking a few words, began clearing her throat. Bryant and Sutton stopped talking, she again cleared her throat, and went into the house, they thought to get a drink of water.

Very shortly thereafter, two of Bryant’s little children ran out on the porch and informed him that their mother was dying, that she said she was dying, whereupon he and Sutton went through the house and found Mrs. Bryant in the back yard leaning upon an old ice box. She recognized her husband and said, “Honey, I am going to die, take care of the children.” They carried her into the house, placed her in a reclining position and immediately called Dr. Lipsky. Although he arrived promptly and injected strychnine into her heart muscle, she died twenty minutes later. While an entire week had elapsed since she was attacked by Cain, after her death bruises from that encounter were observed upon her body by the undertaker.

Prior to August 12th, Mrs. Bryant had never required the attention of a physician, excepting during childbirth, and was always able to perform her household duties, assist her children with their lessons and send them to school, yet from that date until her death she was never herself, nor was she able to perform any of her customary duties in the household. Plaintiffs also produced as a witness Morton Kramer, whom they qualified as an expert on mortality tables. He testified that the life expectancy of a wife 41 years of age was 29.9 years, while that of a husband at 53 years of age was 19.8 years, and added that the joint expectancy of a married couple of those ages was. 17.4 years. ⁶³² Two medical men testified for the plaintiffs, and one of them was concededly. an expert upon diseases of the heart, but, never having seen Mrs. Bryant, he was compelled to base his findings upon the testimony of Dr. Lip-sky. The latter, who first saw Mrs. Bryant on the morning of August 13th, found her very nervous, shocked, and extremely garrulous, observed abrasions on the left side of her face, upon her forearms, and contusions on both wrists.

At that time her blood pressure was abnormally high and she complained of discomfort in her heart region. His examination further disclosed that her pulse rate was 118, and the heart registered booming sounds over its apex. In addition to dressing her wounds and prescribing for her, he advised rest, and did not see her again until August 19th, after she had collapsed. The doctor concluded that the immediate cause of death was acute coronary thrombosis, probably on a hypertensive basis, and identified a certified copy of the death certificiate previously given by him to the same effect.

Dr. Eastland, the heart specialist, had been in court throughout the trial and heard all testimony in the case introduced on behalf of the equitable plaintiffs, and stated that upon the assumption of its truth, and excluding opinions, he had an opinion as to the cause of death which because of its rapid onset and Dr. Lipsky’s findings he attributed to coronary thrombosis. He further stated that shock and fright would affect a good heart by increasing pulse rate and some elevation of blood pressure, but that shock and fright upon a person suffering from a disease of the coronary artery would cause a spasm of that vessel, which upon occlusion prevented the blood from entering, and clotting ensued within the vessel and added “that is the chief effect of emotional factors on a coronary vessel.” Subsequently, over defendant’s objection, he testified that the coronary thrombosis in the case of Mrs. Bryant was precipitated by the emotional disturbances occurring at her home at the time of and preceding her death. That ruling occasioned the first exception. ⁶³³ The witness was unable to say what time was required for a heart to develop a diseased condition or impairment of the coronary artery, and stated that no one could answer that exactly, but the disease of the coronary vessel may have taken place in a period of weeks, months or years; that in his opinion Mrs. Bryant suffered from a coronary ailment prior to her encounter with Cain, but he considered that her experience at the trial before the magistrate was not a contributing factor in causing the thrombosis. He concluded as follows: “An emotional factor may not cause death, but the same factor can ultimately produce death or equal weight, and that is sustained, if you will just glance through your text books over there.” Hazel Shank, who is connected with the State Employment Service, testified of placements of housekeepers made in Anne Arundel County.

The trial court refused to permit her to state the average wage at which domestic help in Anne Arundel County had been placed, but added: “If you want to ask her what is the usual and customary charge, if she can tell of a woman that performs the