McAlister v. Carl

⁴⁴⁹ Brune, C. J., delivered the opinion of the Court. The plaintiff in an automobile collision case appeals from a judgment in her favor on the ground that the rulings of the trial court excluded from the consideration of the jury an element of damages for which she was entitled to be compensated. Despite a narrow statement of the “Question Presented” made by the appellant’s brief and accepted by the appellee’s brief as adequate, this case, we think, was argued and considered in the trial court (as it was elsewhere actually treated in the briefs in this Court and as it was argued here), as presenting what is a novel question to this Court. It may be stated as follows: may the plaintiff recover damages for injuries sustained through the defendant’s negligence based upon her having to give up her chosen and intended occupation because of such injuries, even though she suffered no pecuniary loss through her change of occupation ?

The trial court, after expressing doubt about the matter and inviting the submission of authorities sustaining the plaintiff’s position, which were not forthcoming at the trial, sustained the defendant’s objection to a question which was intended to show that the plaintiff’s major study in college had been physical education. Colloquies between court and counsel made it clear that this evidence was intended as the first step in showing that the plaintiff was trained in this field, that she wished and intended to become a teacher of physical education — particularly of swimming — and that her injuries prevented her from doing so and required her to take up another and more sedentary occupation. The court’s rulings prevented the introduction of evidence to support this claimed element of damages, it was not referred to in the court’s instructions and no argument was permitted to be made based thereon. The case 1 was submitted to the jury on instructions which, after telling the jury that in the automobile collision giving rise ⁴⁵⁰ to the suit the defendant (who had been driving one car) was negligent as a matter of law, and that there was no evidence of contributory negligence on the part of the plaintiff (who had been driving the other car), called for determination of these questions: first, whether the plaintiff sustained injuries, or an aggravation of any pre-existing injuries [physical condition, we think, would have been a better term in the light of the evidence] resulting from the accident; and second, if so, the amount of damages.

As to damages the court instructed the jury that it might consider the plaintiff’s health before the accident as compared with her health since, whether the accident had any effect on her health, the amount of her medical expenses, and “any pain and suffering which she has endured.” With regard to the latter the court added: “Of course, the law gives no exact measure for pain and suffering and you must fix the damages, including that item, in such amount as you deem fair to both parties.” These instructions on damages were in accord with the usual form of such instructions in general use in this State since Bannon v. Baltimore & Ohio R. Co., 24 Md. 108 (1866). See Rhone v. Fisher, 224 Md. 223, 225 , 167 A. 2d 773 , and cases therein cited. No exceptions were taken to the instructions by either party. We do not regard this as barring the plaintiff’s right to appeal, since we think that her objections to the court’s rulings on evidence and on the element of damages now in controversy involved therein, were sufficient to preserve the question of the damages properly allowable as a basis for review on appeal.

No evidence of the plaintiff’s allegedly enforced abandonment of her chosen occupation had been admitted. An objection to the instructions which must be based upon evidence would therefore not have been in order, and the appropriate, if not the only available, way to preserve the question on appeal was by objection to the trial court’s rulings on evidence involving the question. That course has been followed. The jury’s verdict was for $1,528.50, which was substantially the sum of the plaintiff’s medical expenses which had been duly proven plus $1,000.00.

Essentially, the plaintiff’s claim is that she should have been allowed to present fi> the jury as a specific element of damages her claim based upon having to give ⁴⁵¹ up her chosen and intended occupation, even though no pecuniary loss resulted therefrom. As the case comes before us, this is the only issue presented. 2 Under the usual form of instructions in Maryland relating to damages in negligence cases involving personal injuries, recovery of damages for non-pecuniary harm is allowed as compensation for pain and suffering. This is in accord with the general law. Restatement, Torts, § 905, states: “Compensatory damages for harm not involving pecuniary loss include compensation (a) for bodily harm, and (b) for emotional distress.” The difficulty of attaining certainty in the amount of damages for harms to body, feelings and reputation is clearly recognized and stated in § 912 of the same work, particularly in comments a and b.

Mere or sheer difficulty in measuring damages for pain and suffering has not prevented their allowance at least in cases where there has been some bodily injury, as there was in the instant case, nor even in the absence of physical impact, in a case where fright caused by the defendant’s negligence results “in some clearly apparent and substantial physical injury as manifested by an external condition or by symptoms clearly indicative of a resultant pathological, physiological or mental state.” Bowman v. Williams, 164 Md. 397, 404 , 165 A. 182, 184 ; Mahnke v. Moore, 197 Md. 61, 69 , 77 A. 2d 923 . The doctrine is not without its limitations, and recovery for shock or fright due to injury to one’s property was held not to be allowable, even though such shock or fright brought on ⁴⁵² a heart attack resulting in the death of the plaintiff’s decedent. State, Use of Aronoff v. Baltimore Transit Co., 197 Md. 528 , 80 A. 2d 13 . This decision was reached because the consequences ensuing from the defendant’s negligence were not such as, in the light of all the circumstances, to have been contemplated as a natural and probable consequence thereof.

Baltimore City Passenger R. Co. v. Kemp, 61 Md. 74 was cited. (See 197 Md. at 539.) So, too, in Resavage v. Davies, 199 Md. 479 , 86 A. 2d 879 , damages- for shock to a mother caused by seeing her children killed by a negligent motorist, when she was in no danger herself, were held (by a sharply divided court) not to be recoverable. The Aronoff and Mahnke cases both make it clear that damages for which recovery may be allowed must be proximately caused by the defendant’s negligent act, and the Aronoff and Resavage cases indicate that the element of foreseeability may be determinative. In Resavage lack of foreseeability of the mother’s presence was of major importance in finding the lack of any duty owed to her.

Mahnke v. Moore, supra, was a case in which the father of the plaintiff child killed the mother in the presence of the child, and about a week later killed himself in the presence of the child, and the injuries to- the child were regarded as resulting from “cruel and inhuman treatment or * * * malicious and wanton wrongs.” (See 197 Md. at 68.) Neither Aronoff, Resavage, nor the instant case involves an intentional wrong, and the limits of foreseeability may, as Resavage seems to indicate ( 199 Md. at 483 ), be more restricted in cases of only negligent wrongs. However, in our estimation, the injury in controversy — loss of the plaintiff’s ability to engage in her chosen and intended occupation — is not beyond the limits of reasonable foreseeability, and here (unlike Resavage) there were bodily injuries to the plaintiff herself. It is plain that negligence resulting in an automobile collision may cause, and is likely to cause, physical injury to another, and that physical injury may limit or prevent physical activity in many occupations requiring it, including that of an instructor in physical education. That the injured person might suffer keen disappointment or frustration through having to abandon the occupation in which she was engaged or for which she had prepared herself would also seem within the range of foreseeability. ⁴⁵³ Authorities are divided, however, as to whether loss of enjoyment of life is compensable in damages.

See the cases collected in a note in 120 A.L.R. 535 , following the case of Hogan v. Santa Fe Trail Transp. Co., 148 Kan. 720 , 85 P. 2d 28 , 120 A.L.R. 521 . Some states, including Kansas and Indiana, have reversed their positions on this question. Several objections are relied upon to defeat recovery for such damages: usually that such damages are too speculative or uncertain and are incapable of measurement in monetary terms, and sometimes that such damages would overlap other elements of damage otherwise compensated for, and occasionally because of lack of causal connection.

Cases which uphold recovery have no difficulty with the question of causation (and we have indicated that here we do not), and they usually meet the other objections on the ground that the problems of determining the existence of such damages and of measuring them in money are not materially different from those involved in making any award for pain and suffering. See a note on the Hogan case in 52 Harv. L. Rev. 838 -39. See also: Developments in the Law, Damages, 1935-1947, 61 Harv.

L. Rev. 113 , 143-44; Note, 38 Mich. L. Rev. 97 , 100; Goodrich, Emotional Disturbance as Legal Damage, 20 Mich. L. Rev. 497 . Hogan is probably the leading case in refusing to allow damages for loss of enjoyment.

There the plaintiff, a woman sixty-three years old, who was an accomplished violinist, sustained an injury which prevented her from playing the violin. She had studied the violin at home and abroad, had given violin lessons, had directed orchestras, and had played solos in public. Playing the violin had been her life work and was her greatest enjoyment. The majority opinion held that “loss of enjoyment is too speculative and conjectural to form a sound basis for the assessment of damages.” In reaching this conclusion the court cited and relied upon City of Columbus v. Strassner, 124 Ind. 482 , 25 N. E. 65 , and other Indiana cases.

A like view was expressed in Belleview v. England, 118 S. W. 994 (Ky.), which, along with Hogan , is relied on by the defendant. Belleview expressly disapproved instructions which, after allowing recovery for mental and physical suffering, loss ⁴⁵⁴ of time,