Mangione v. Snead

Offutt, J., delivered the opinion of the Court. On November 18th, 1985, Coolidge Snead, the infant ³⁸ son of Ella Snead, while crossing Presstman Street at its intersection with Mount Street in Baltimore City, was struck and injured by a taxicab, owned by Benjamin Mangione and operated by Gilbert R. Kines, his employee, under circumstances which appellees contended made the appellants liable to the infant plaintiff for the injuries he sustained as a result of the accident. To enforce that liability, Coolidge Snead, by his mother and next friend, brought an action in the Court of Common Pleas of Baltimore City against Mangione and Kines, and Ella Snead sued the same defendants in the same court for the loss of his services and for expenses, incurred in treating his injuries. The two cases were tried together, the trial resulted in verdicts for both plaintiffs, and on each verdict a judgment was entered.

These appeals are from those judgments. Appellants concede that the evidence was legally sufficient to permit a recovery. They do not question the propriety of the court’s rulings, as to that issue, but they contend that the trial court (1) erred in refusing to instruct the jury that there was in the case no evidence legally sufficient to show that Coolidge Snead suffered any'permanent injuries as a result of the accident, and (2) in admitting certain medical testimony concerning his injuries. These contentions are submitted by eleven exceptions, of which the first ten deal with rulings on the prayers.

The rulings on the admissibility of evidence all relate to an attempt on the part of the plaintiffs to show that, as a result of the injuries caused by the accident, the infant plaintiff’s mind was permanently impaired and its development retarded. It appears without contradiction that he suffered no discoverable physical injuries of a permanent character, so that, unless the injuries did cause some permanent impairment of his mind, it necessarily follows that he was not entitled to recover compensation for permanent injuries. Whether they did have that effect was the real question in the case as it comes to this court. And, since the determination of ³⁹ that question depends in part at least upon the propriety of the rulings involved in the exceptions relating to the admissibility of evidence, they will be first considered.

In describing the accident, eyewitnesses said that the cab knocked the boy down and dragged him “about two doors”; that he made no outcry; that he lay in the street unconscious, and was bleeding from his mouth and nose. He was at once placed in a cab with his mother, who lived.near the scene of the accident, and driven to the hospital. His mother said that just before they reached the hospital the boy asked where they were going; that he talked wildly and acted “like he was ready to run away”; that she took him by the arm and he walked into the hospital. She also said that on the night of the accident he had a “vomiting spell,” and she sent for Dr. Hatcher, the family physician.

In describing his condition before and after the accident she said: “Since the accident his conduct has been pretty good, but does not have good remembrance; that he gets into ‘mystery’ all the time, that mystery means tearing up, destroying things; not long ago he set fire to the window curtains and they burned down; he daubs paint on the wall and when asked about it he would not know anything about it; was not like that before the accident; has hot attended school since the accident; * * * that ever since the accident he has been wetting the bed, which he never did before; for at least three weeks after the accident he soiled his clothes during the day; did not do this before the accident; does not play with children like he did before; * * * he went to school in Accomac County, Virginia; his marks were good in school; he did not go as regularly as he should during the year he attended school in the country; he has been going to school in Baltimore since 1933; he was never involved in any other accident. “Q. Will you tell his Honor and the gentlemen of the jury whether or not when you saw the boy he had any marks on his head? A. Yes, sir, he did. He had a scratch beside his nose and one over his forehead. She saw a ⁴⁰ hematoma, that anyone who looked at the boy could see his bleeding forehead and the side of his nose are hematoma because she saw it.” The first witness offered by the plaintiffs was one Henry Hammond, who described the accident and the boy’s appearance and apparent injuries at that time.

Following his testimony, Dr. Philip F. Lerner was called. He saw the boy for the first time in April, 1936, more than four months after the accident. After testifying that he had “obtained the history from the mother of an automobile accident in 1936” and that the boy had been under his care “until a week ago,” he was asked to say “what if anything he found wrong” with the boy. Defendants objected to the question, but the court over that objection permitted the witness to answer it “subject to exception,” and this testimony followed: “A. I found that the child was backward, didn’t answer questions which you would expect a normal child of his age to answer.

(The Court) Doctor, suppose you give us any outward evidence of injury you found, if any at all. (The Witness) No physical signs, outside of hyperactive reflexes there were no external signs on the boy. That the boy was backward and did not react as a normal boy of nine years of age should react to questions, that he was unable to answer questions as to current events such as a normal child should, and did not respond as well as a normal child; that he rendered no treatment since the mother said he was under the care of a family physician.” The witness was then asked: “Doctor, assuming that this boy had had concussion of the brain on November 18th, 1935, would you say from your examination that the condition you have, described would or would not be the result of a concussion of the brain?” An objection to that question was also overruled, and the witness allowed (also subject to exception) to answer, and he replied: “I think he had had a concussion; means disturbance in either behavior or mental condition; that he did not know the boy’s condition so far as normality ⁴¹ wias concerned, prior to the accident; and that he had looked up his school record.” Those rulings are the subject of the first, second, and third exceptions. At the time those questions were asked, there was no evidence of any kind in the case that the boy had ever had a concussion of the brain, it did not appear that the witness knew anything of the physical injuries which he suffered as a result of the accident, except what he h)ad learned from an undisclosed and unsworn statement by Ella Snead, and from a hospital record which contained these entries: “Provident'Hospital, Accident Room Record No. 26158.

Date 11/18/35, Name, Coolidge Snead. Address 1628 Presstman Street. Age 10. Colored.

Sex, male. Occupation, school. Brought by G. R. Kines, Diamond Cab 968. Admitted to emergency room 2:40 P. M. Injury: Abrasion of left arm.

Treatment: Cleansed, Scott’s applied. Admitted? No. Sent to home. Condition good.

Intoxicated, No.” The witness did not testify that from any examination which he himself made that he was able to say either that the boy had had a concussion of the brain, or that his mental condition when the witness examined him was caused by the accident. Under those circumstances there was no basis for the assumption that the boy had suffered a concussion of the brain, or for allowing the witness to testify that the boy’s mental condition was the result of such a concussion. He admitted that, while he had “looked up .his school record,” he knew nothing of the boy’s condition “so far as normality was concerned” before the accident, and therefore had no factual basis for comparing his mental capacity at that time with his mental capacity when he came under the observation of the witness. While he was not the “family physician” of the Sneads, Dr. Lerner may be classified as- an attending physician of Coolidge Snead.

As his attending physician, under the rule stated in Crockett v. Davis, 81 Md. 134, 149 , 31 A. 710 , he was qualified to state his opinion of the mental capacity of the boy when he came under his ⁴² observation, without first stating the facts and circumstances upon which his opinion was based. Davidove v. Duvall, 160 Md. 345, 352 , 153 A. 417 , and cases there cited. But even so, if it definitely and clearly appeared that there was in fact no rational basis for the opinion, it had no probative force. Donnelly v. Donnelly, 156 Md. 81 , 143 A. 648; Livingston v. Safe Dep. & Tr.

Co., 157 Md. 492 , 146 A. 432 ; Davidove v. Duvall, supra. It has been held (Standard Accident & Life Ins. Co. v. Wood, 116 Md. 575, 594 , 82 A. 702 ) not to be reversible error to permit an expert witness to express an opinion based upon facts assumed but not in evidence when the question is asked, if such facts are later proved in the case. Generally, however, the evidential facts constituting the predicate should be in evidence when the question is asked, or the question should be accompanied by a definite offer to prove such facts.

Jones on Evidence, sec. 371; 11 R. C. L. 585; 27 C. J. 713, 714; Robinson v. Jones, 105 Md. 62 , 65 A. 814 ; Electric Light Co. v. Lusby, 100 Md. 634, 651 , 60 A. 248 . When the questions under consideration were asked, not only was there no evidence that the boy had suffered a concussion, but there was neither an offer to show that he had had a concussion, nor evidence subsequently given sufficient to prove such an injury. It is true counsel stated, “We will follow it up, sir,” but that assurance, standing alone as it did, was so vague as to be meaningless. The only evidence that the infant plaintiff had suffered a concussion of the brain was that of Dr. Bernard N. Hatcher, who testified that he “thought” the child had had a concussion.

Dr. Hatcher was the family physician of the Sneads. He saw the child at hi® home on the night of the injury, and said that at that time he did not think there was much the matter with him, that he was conscious, knew Hatcher, but did not complain of any pain. He said that on the following day he found the bed in which the boy was lying wet from urine, but he did not apparently regard thiat as a symptom of concussion. He himself observed no recognized symptom of ⁴³ concussion of the brain, his opinion was, according to his own statement, “built upon the history” he obtained from the mother, and he said the only symptoms “that would possibly convince me were that he was stupid following the accident.” He was unwilling to say definitely that the boy had had a concussion, so thiat his opinion was a mere conjecture, based in part upon the statement of the mother, which was hearsay, and the fact that the boy seemed stupid, and he assumed that he was stupid because he said he had no pain.

Finally, when asked by , the court: “Doctor, we get a little confused about this, you know. Your first testimony was, if you will recall, that when you first went in there you didn’t consider there was anything much wrong with the boy? (The Witness) That’s right. (The Court) Did you so testify?

(The Witness) That’s right. (The Court) Now, then, that brings us up to this: When was it that you began to have suspicions in your mind, suspicions that there was a possibility of concussion? (The Witness) That was at the first visit when I was there. (The Court) Well, then, how do you reconcile that—that’s the thing I can’t get clear; I always put myself in the position of the jury, and I like to clearly understand the testimony—if you thought there was nothing serious at the time of your first visit, how do you reconcile that with the thought there might be a concussion?” He answered: “Well, I can answer that question this way: You see, sometimes concussions are so slight that they soon pass off and never give any after-effect whatsoever.” The mother, after Dr. Hatcher had testified, did say that the boy had had a “vomiting spell,” but Dr. Hatcher did not know on the occasion of his first visit that the boy had had such an attack, and, although nausea was a recognized symptom of concussion of the brain, he did not inquire if he had been nauseated. •Such testimony was too indefinite and speculative to constitute the basis of a judicial conclusion, and it follows that the assumption invthe question to Dr. Lerner that the boy had had a concussion was improper. ⁴⁴ Nor did the fact that Dr. Lerner attended the boy during and after April, 1936, in the absence of facts, either observed by him or assumed, sufficient to justify the conclusion, qualify him to express an opinion as to the nature of injuries suffered in November, ,1935.

But the only tangible fact to support his conclusion that the boy had had a concussion of the bnain, and that his present condition was a result of that injury, was that he was backward and did not respond to questions as a normal child of his age should, although he admitted that he knew nothing of the child’s mental capacity prior to the accident. There was therefore error in these rulings. In the examination of Dr. Hatcher, after he had testified that he had examined the boy on the night of the accident, he was asked, “Well, what did you find wrong with him, if anything?” The witness replied, “Well, the only thing I found wrong with him from an examination standpoint of view were these few scars on his face and arms; but I thought—” At that point counsel for defendants objected, the objection was overruled, and the witness continued, “But I thought he had had possibly a concussion of the brain from the accident.” A motion to strike out that statement was also overruled, and the court said: “At what time? He had had the concussion of the briain at what time?” and Hatcher answered, “Well, I thought probably he had had it at the accident, you know, some time that afternoon.” A motion to strike out'that answer was also overruled.

Those rulings are involved in the fifth exception. That exception refers not only to those rulings, but also to a ruling in reference to a question asked of another witness, but while the practice of embodying in one exception rulings on distinct question of law has been disapproved by this court (Harris v. Hipsley, 122 Md. 418, 436 , 89 A. 852 ; Pen Mar Co. v. Ashman, 152 Md. 273, 283 , 136 A. 640 ; Winakur v. Sapourn, 156 Md. 662, 670 , 145 A. 342 ),