Kraft v. Freedman

Carter, J., delivered the opinion of the Court. The appellees Aaron Marvin Freedman and Betty Freedman, his wife, recovered judgments against the appellant John Vernon Kraft on account of personal injuries sustained in a motor vehicle collision. The action was tried before a jury in the Circuit Court for Baltimore County solely on the issue of damages after the appellant had conceded his liability. The declaration contained three counts.

Count one asserted Mrs. Freedman’s individual claim, count two Mr. Freedman’s individual claim, and count three the joint claim of Mr. and Mrs. Freedman for loss of consortium. The jury returned a verdict in favor of Mrs. Freedman individually for $5,-000, in favor of Mr. Freedman individually for $500, and in favor of the joint claim for $2,000. The appellant ap ¹⁸⁹ pealed from these judgments contending that the court’s instructions were in error in failing to advise the jury that there was no legally sufficient evidence to establish that Mrs. Freedman’s pre-existing ileitis was aggravated by the accident. FACTS The collision occurred on the Baltimore Beltway on January 9, 1969.

The car operated by the appellee (Mrs. Freedman) in which Mr. Freedman was a passenger was struck by a car operated by the appellant (Mr. Kraft). The Freedman car was stopped at the time because of a back-up of traffic. Mr. Kraft was unable to bring his car under sufficient control to avoid striking the Freedman car as he approached it from the rear. A third party who was an eyewitness to the collision testified that the two cars “hit pretty hard.” The Freedman car was tilted as a result of the collision thereby causing Mrs. Freedman to strike her head against the door frame and Mr. Freedman to catch his foot under the brake pedal.

When they arrived home, Mr. Freedman called the office of Dr. Daniel Bakal, their, family physician, and reported their injuries. The testimony of Mrs. Freedman showed that in May 1968, she developed ileitis (inflammation of the small intestine) and underwent surgery in an attempt to correct the condition. In December 1968, she was practically cured of the disease through medication administered by Dr. Bakal. After the accident in January 1969, the ileitis symptoms recurred.

A specialist prescribed an additional drug and brought her condition under control within about two months after he started treatment in April 1970. Her neck was injured as a result of the accident and has continued to cause her pain and discomfort since that time. The injuries which she sustained in the accident have limited her activities requiring physical exertion such as gardening and housework as well as the social activities of her and her husband. The testimony of ¹⁹⁰ Mr. Freedman substantially corroborated that of his wife concerning her injuries.

He also testified that his leg was injured in the accident. Mrs. Freedman reported for work the next day and Mr. Freedman returned within a few days after the accident. Dr. Daniel Bakal was called as a witness for the appellees (Freedmans). His testimony showed that he had treated Mrs. Freedman for her ileitis after her operation in May 1968.

Her first consultation with him after the accident was on January 24, 1969 (15 days later), which was for the dual purpose of discussing the accident and having a routine check-up of her ileitis. His examination at that time showed that “she was doing well” so far as her ileitis condition was concerned. He found a tenderness of the neck muscles which he attributed to the accident. In May 1969, by prearrangement, he conducted another routine check-up of Mrs. Freedman’s ileitis including X-rays of the area affected.

The Doctor stated that the treatment of the condition involved the use of a variety of drugs and the taking of blood counts and X-rays from time to time to ascertain the existence of the inflammation. Dr. Bakal further testified that he was unable to determine with reasonable medical certainty whether the recurrence of the ileitis was caused by the accident. In this connection he pointed out that the disease was “cyclic” (occurred in cycles) with “ups and downs”, and therefore that it was difficult to determine whether the recurrence was a natural incident of the ileitis disease or was caused by the accident. Dr. Jesse Borden, an orthopedic surgeon, was a witness for the appellees (Freedmans).

He testified that, in his opinion, based on reasonable medical certainty, Mrs. Freedman had sustained a 15 to 20 per cent permanent disability of her neck as a result of the accident. Dr. Calvin Hornstéin, a chiropractic physician, also testified for the appellees. He stated that Mrs. Freedman had sustained a chronic strain of her neck as a result of the accident and that he had treated her for several weeks ¹⁹¹ in the fall of 1969 during which time her condition materially improved. He released her in October 1969.

Dr. Thomas Hunt, an orthopedic surgeon, testified for the appellant. He stated that he had examined Mrs. Freedman on October 20, 1970, and had failed to find any organic or observable basis to indicate that she had sustained an injury to her neck. REQUIREMENTS OF MD. RULE 55k d and e At the time of the exception the court had instructed the jury as follows in respect to the flare-up of the ileitis: “* * * There is evidence that there was a flareup shortly after the accident, but it is up to you to determine from the medical evidence as to whether or not that flare-up was one which came in the normal, ordinary course of the disability which she had pre-existing this accident or whether this flare-up was caused by the accident.

If it was caused by the accident she is entitled to be compensated for it; if it would have come about in any event, then obviously she is not entitled to be compensated for it.” (emphasis supplied-). The verbal exception taken by the appellant to the court’s instructions before the jury retired was denied. The exception was as follows: ‘T just have one exception, of the court’s failure to instruct the jury to disregard all testimony on the ileitis condition, since the only evidence on that was the testimony of Dr. Bakal, who, in response to the question of whether he had a professional opinion based on his examination and history with reasonable medical certainty whether or not the ileitis condition was affected by the accident, stated that he could not give such an opinion.” ¹⁹² The appellees challenge the adequacy of this exception to present to this Court for review the question of the legal sufficiency of the evidence to establish a causal connection between the accident and the recurrence of the ileitis. Md. Rule 554 d provides that “if a party has an objection to any portion of any instruction given, or to any omission therefrom, or to the failure to give any instruction, he shall before the jury retires to consider its verdict make such an objection stating distinctly the portion, or omission, or failure to instruct to which he objects and the ground of his objection.” Section e of the Rule provides that “upon appeal a party in assigning error in the instructions, shall be restricted to (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct distinctly objected to before the jury retired and (2) the grounds of objection distinctly stated at the time, and no other errors or assignments of error in the instructions shall be considered by the appellate court.” In Kowalewski v. Carter, 11 Md. App. 182 , the trial judge instructed the jury that a state trooper who had been a witness in the case “by his own experience and work, has to be given some credence.” In excepting to this portion of the instruction, counsel said, “The Defendant excepts to the court’s statement, * * * that the trooper, by virtue of his experience, must be given some credence.” In ruling that the exception preserved the objection for appellate review even though it failed to state “the ground of his objection” as required by Md. Rule 554 d, this Court said at page 192: “* * * The Rule does provide that ‘the ground of his objection’ shall be stated, but it was perfectly evident, particularly in the light of the other parts of the charge regarding credibility, that the ground was that the credibility of the trooper was solely for the jury and that to tell them that