Ory v. Libersky

¹⁵³ Moore, J., delivered the opinion of the Court. We are here presented with an appeal and a cross-appeal in a wrongful death action in which liability was admitted and the jury awarded damages of $50,000 to each of three minor children, and $10,000 to the estate of the decedent for conscious pain and suffering and for medical and funeral expenses. The defendant below (appellant and cross-appellee, Bettie Ruth Ory, Personal Representative) moved for a new trial, arguing prejudicial error in permitting the jury to consider: (a) contributions from the father toward the cost of the children’s higher education as evidence of economic loss and (b) the entitlement of the estate to damages for conscious pain and suffering. The trial court granted the motion with respect to conscious pain and suffering, holding that the evidence on that issue was insufficient to constitute a jury question. 1 The central questions raised on this appeal are the two issues which were involved in the motion for a new trial.

There are also related subsidiary questions pertaining to the trial court’s denial of two motions in limine filed by appellant; and claims of error in permitting expert testimony based upon an allegedly improper hypothetical question and in the jury’s rendition of lump sum verdicts for the children in identical amounts. The appellee, Anthony Libersky, by a cross-appeal, claims that the court erred in finding no evidence of conscious pain and suffering, and in granting summary judgment for the appellant on that issue. Finding no error, we affirm. I On Christmas eve 1975, at approximately 8:30 p.m., there was a head-on collision between two automobiles on Maryland Route 213, approximately one mile south of Chestertown in Kent County.

Valerie James Ory, Jr., who negligently crossed into the opposite lane causing the fatal accident, was killed ¹⁵⁴ instantly. Kenneth Wesley Holden, operator of the other vehicle, was pinned behind the wheel, mortally injured. He was taken to the Kent and Queen Anne’s Hospital by the Kent and Queen Anne’s Rescue Squad. All appropriate emergency treatment, including cardiac massage, was administered but he was pronounced dead at 9:30 p.m.

At the time of his death, Mr. Holden was 38 years of age and the father of three children — a daughter Linda, then 14, and two sons, Martin and Gary, then 12 and 10, respectively. He and the children’s mother, Mary T. McClements, had been divorced in 1971 after ten years of marriage and she received custody pursuant to the terms of a separation agreement and subsequent decree. She thereafter remarried. The uncontradicted testimony disclosed an unusually amicable relationship between Mr. Holden and his former spouse and her second husband, and close, warm, and constant contact between the deceased and his children.

With respect to his personal history, the evidence revealed that Kenneth Holden grew up on a farm and his formal education terminated at age 16. At 22, he married Mary, then 19 and a high school graduate. In the early years of their marriage, he was a farmer. Later he became a farm equipment mechanic and at the time of his death was employed by a farm implement dealership at $3.75 per hour.

His life expectancy was 33.2 years. The declaration filed by appellee Libersky, personal representative of Mr. Holden’s estate, sought in count one recovery of damages for conscious pain and suffering, medical and funeral expenses, and property damage to his vehicle, as authorized by Md. Est. & Trusts Code Ann. § 7-401 (1974). Count two asserted a cause of action on behalf of the surviving children, by their mother and next friend, pursuant to Md. Cts. & Jud. Proc.

Code Ann. § 3-904 (1974). Appellant filed two motions in limine which were heard in open court prior to the trial date. The first' attempted to preclude testimony concerning educational expenses of the children beyond high school on the ground that the deceased had no legal obligation to share in the expenses of higher education. The purpose of the second motion was to exclude testimony ¹⁵⁵ concerning conscious pain and suffering on the ground that pretrial depositions of all competent witnesses did not show a sufficient basis for allowing the jury to consider this element of damage.

Both motions were denied. Objections to the challenged testimony were reasserted at the trial of the action, and, at the conclusion of all the evidence, instructions precluding consideration of these elements of damages were requested but denied. The jury was presented with a form of verdict calling for a finding of damages on behalf of the personal representative and on behalf of each of the surviving children by name. Following the return of verdicts in favor of the personal representative and children, appellant moved for a new trial.

The court agreed that the question of conscious pain and suffering should not have been submitted to the jury because the evidence was insufficient. The motion was therefore granted as to count one unless appellee filed a remittitur in the amount of $8,048.40 (the amount of the verdict less funeral, hospital and medical expenses of $1,951.60). The motion was denied, however, with respect to the verdicts for the children. No remittitur was filed.

Libersky then moved for summary judgment and filed therewith a formal proffer of the same evidence on the issue of conscious pain and suffering as had been presented at the trial. The court granted summary judgment under count one, awarding Libersky special damages in the amount of $1,951.60, but ordered summary judgment in favor of Ory under the claim for conscious pain and suffering. Ory’s appeal and Libersky’s cross-appeal were then taken. 2 ¹⁵⁶ II The statutory remedy of the three children of Kenneth Holden for the wrongful death of their father derives from Maryland’s version of Lord Campbell’s Act, Md. Cts. & Jud. Proc.

Code Ann. § 3-901 et seq. (1974, 1977 Cum.Supp.). Subsections (c) and (d) of § 3-904 are particularly applicable: “(c) Damages to be divided among beneficiaries. — In an action under this subtitle, damages may be awarded to the beneficiaries proportioned to the injury resulting from the wrongful death. The amount recovered shall be divided among the beneficiaries in shares directed by the verdict. “(d) Damages if spouse or minor child dies. — For the death of a spouse, minor child, or parent of a minor child, the damages awarded under subsection (c) are not limited or restricted by the ‘pecuniary loss’ or ‘pecuniary benefit’ rule but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable.” (Emphasis added.) The jury awards of lump sums in the amount of $50,000 to each of the children are first assailed by appellant on the ground that “it was error to permit evidence of educational ¹⁵⁷ expenses based on [an] unenforceable separation agreement and without a demonstrated foundation as to the ability, age, and certainty of each child to attend college.” An agreement of separation between the children’s mother and the decedent, dated May 11, 1970, provided in paragraph 11 that the father would contribute $15 per week as child support and share the medical expenses until each child attained the age of 21 years.

The last sentence of the paragraph further provided: “The parties hereto further agree that they will share equally in expenses of higher education of any of said three children in the event they desire to continue their education beyond high school.” Pointing to precedents in the field of family law, Rhoderick v. Rhoderick, 257 Md. 354 , 263 A. 2d 512 (1970), Wooddy v. Wooddy, 258 Md. 224 , 265 A. 2d 467 (1970), Kramer v. Kramer, 26 Md. App. 620 , 339 A. 2d 328 (1975), McClure v. McClure, 15 Md. App. 226 , 289 A. 2d 610 (1972), appellant argues that the obligation of the deceased father was unenforceable, and that any award based upon his assumed contributions to the higher education of his surviving children was entirely speculative. The difficulty we find with appellant’s position stems precisely from the fact that this is not a matrimonial cause but a wrongful death action; and we find altogether inapposite the general guiding principles in the cases cited by appellant that a college education is a necessity if the station in life of the infant justifies a college education and the father is able to pay or contribute to the payment for such education. See Rhoderick v. Rhoderick, supra, 257 Md. at 367-68 , 263 A. 2d at 519 . Similarly beside the mark is appellant’s contention that the provision for educational expenses in the separation agreement is ambiguous in that the time for termination of the obligation and the types of expenses to be included as “expenses of higher education” are not expressly set forth.

See Kramer v. Kramer, supra; McClure v. McClure, supra. In a wrongful death action, the test of the propriety of an award of damages for loss of educational benefits is not the ¹⁵⁸ existence or not of an enforceable legal obligation of the divorced non-custodial parent to contribute to post-high school educational obligations. It is rather the existence or not of a reasonable expectation on the part of the surviving child or children of educational benefits they might properly have expected to receive from their deceased father but for his wrongful death. Strahan v. Webb, 330 S.W.2d 291 (Ark. 1959) (circumstances indicated that, in natural course of events, father would have contributed, to best of his ability, to children’s college education expenses); see Hutzell v. Boyer, 252 Md. 227 , 249 A. 2d 449 (1969); Baltimore Transit Co. v. State ex rel.

Castranda, 194 Md. 421 , 71 A. 2d 442 (1950); State ex rel. Bowman v. Wooleyhan Transport Co., 192 Md. 686 , 65 A. 2d 321 (1949); State ex rel. Strepay v. Cohen, 166 Md. 682 , 172 A. 274 (1934); 25A C.J.S. Death § 26 (1). The real significance of the separation agreement in this case was correctly evaluated by the trial judge in his instructions to the jury when he stated: “The separation agreement which is in evidence, and only paragraph 11 concerns the amount of support and contribution for higher education if the children pursue that, is not a binding contract that affects the children.

It is merely a piece of evidence for you to consider as to what the father would have done, or was likely to do, or would probably do for his three children had he lived.” (Emphasis added.) In addition to the agreement, other evidence of record in this case clearly establishes a jury question on the issue of loss of educational benefits. This evidence includes: (1) expert testimony from an economist relating to the cost of a public college education and the deceased’s projected earnings; (2) testimony of the mother that a savings account had been established for the children’s higher education and that both she and the father encouraged the children to aspire to a college education; ¹⁵⁹ (3) testimony of the daughter Linda that she was a member of the honor society at Kent County High School, had definite plans to attend college, and wished ultimately to study law; (4) testimony of the boys, Martin and Gary, then in only sixth and seventh grades, respectively, that they “hoped” to go to college; (5) the father’s regularity in making support payments and his general disposition to be of fatherly assistance to his children. We also reject the related contention of the appellant that the evidence must disclose the certainty that each child would attend college. Again, matrimonial law precedents are inapposite.

See Annot., 56 A.L.R.2d 1207 (1957); Pincus v. Pincus, 197 A. 2d 854 (D.C. 1964). In such cases, the ability and capacity of a child for higher education may be demonstrated with some certainty in subsequent proceedings. In a wrongful death action, it can only reasonably be required that the evidence at the time of trial be sufficient to show a probability that the children would pursue higher education. We think the evidence in this case met that requirement.

Our determination of this fundamental issue is also dispositive of appellant’s contention that a hypothetical question presented to the economic expert improperly elicited a legal interpretation of the separation agreement and was improper because it did not include evidence concerning the type of education each child would “certainly” pursue after high school. Ill Under well-settled principles of Maryland law relative to the issue of recovery for conscious pain and suffering, it was incumbent upon Libersky, under count one of the declaration, to establish by a preponderance of the evidence (a) that the deceased Ory’s negligence was the direct and proximate cause of the accident, (b) that the deceased Holden lived after the accident, and (c) that between the time of the accident and ¹⁶⁰ the time of death, Holden suffered conscious pain. Tri-State Poultry Cooperative, Inc. v. Carey, 190 Md. 116, 125 , 57 A. 2d 812, 817 (1948). Liability was here admitted and it was uncontroverted that Mr. Holden survived for approximately one hour.

The issue which the court decided as a matter of law, adversely to Holden’s estate, was whether the deceased suffered conscious pain before he died. The primary evidence came from the deposition read at trial of Charles Carter, a member of the Kent and Queen Anne’s Rescue Squad who, with two other persons, initially responded to the scene of the accident. Carter was the first member of the team to reach Mr. Holden and was the only member who ministered closely to him while he was trapped inside the vehicle. Carter also accompanied the deceased in the ambulance to the hospital.

In the course of his deposition, he testified that the victim had sustained a “tear type” wound to the right side of his face, extending “from the chin to about the top of the cheek,” and that there was “a large amount of torn loose flesh.” In addition, Carter noticed that the victim’s left arm was bleeding and was fractured. He believed Mr. Holden might also have sustained a leg wound, but of that he was uncertain “because he was pinned at the time.” Mr. Carter’s testimony bearing on the issue of the victim’s consciousness and vital signs was as follows: “Q From what you could observe, was he conscious? “A Yes. I would say he was. “Q During the time that you were in the immediate presence of Mr. Holden, did you hear any sounds or noises coming from his body? “A Yes. He was breathing rather laborly [sic] and he apparently had swallowed some blood because there was a gurgling sound in breathing, and he made no moans as such, other than this common gasping sound for breath, which was usually a normal reaction. “Q Mr. Carter, did you have an occasion to make any determination as to whether or not he had a pulse? ¹⁶¹ “A At the scene?

Yes, I did. “Q What did that investigation result in your determining? “A As to whether or not he had a pulse? “Q Yes. “A It was a