Sun Cab Co. v. Walston

Powers, J., delivered the opinion of the Court. A few minutes after 1:00 P.M. on July 28, 1967, Mrs. Dorothy A. Walston entered a taxicab owned by Sun Cab Co., Inc. and operated by Curtis Lee Ash, on Edmonson Avenue, in Baltimore. The cab headed east. About 300 feet east of Hilton Street, at a point where a raised concrete median strip divided Edmondson Avenue, to separate eastbound and westbound traffic, the cab crossed the median strip and collided with a westbound truck, operated by its owner, Wilton Ernest Moore.

His 17 year old son, James Moore, was a passenger in the truck. Mrs. Walston was killed. Mr. Ash and both of the Moores were injured. Suit claiming damages for wrongful death was filed against Sun Cab and Ash by Richard B. Walston, surviving husband of Dorothy Walston, and by her six chil ¹²⁰ dren, whose ages at the time of her death ranged from just under three to not quite twelve.

A claim by Mr. Walston as Administrator was included. Mr. Moore and his son in separate cases sued Sun Cab and Ash. In the son’s case, Mr. Moore was next friend, and individually asserted his derivative claim. Mr. Ash, with leave of court, sued the Commissioner of Motor Vehicles, and by later amendment, added the Unsatisfied Claim and Judgment Fund Board, as stand-ins for an unidentified driver of another vehicle alleged to have been involved.

The four cases were consolidated, and tried before a jury and Judge Joseph C. Howard in the Superior Court of Baltimore City. Trial began on February 9, 1971, and was concluded with the jury’s verdicts on February 23, 1971. In the suit of the Walstons against Sun Cab and Ash the verdict was for the plaintiffs. Damages were assessed in favor of the Administrator at $1,000.00; in favor of the surviving husband at $125,000.00; and in favor of the six children at $100,000.00 each.

In the suit of Ash against the Unsatisfied Claim and Judgment Fund Board the verdict was for the defendant. In the suit of Wilton E. Moore against Sun Cab and Ash the verdict was for the plaintiff and damages were assessed at $14,500.00. In the suit of James Moore against Sun Cab and Ash the verdict was for the plaintiffs. Damages were assessed at $1,500.00 for James Moore, and at $205.-00 for his father’s derivative claim.

Upon denial of motions for new trial and in arrest of judgment on July 30, 1971, judgments were entered in accordance with the verdicts. Sun Cab and Ash appealed from all judgments and from the order denying their motions in arrest of judgment. We shall affirm the judgments in favor of Richard B. Walston, Administrator, the Unsatisfied Claim and Judgment Fund Board, Wilton E. Moore, and James Moore. The judgment in the wrongful death claim of the surviving members of the Walston family will be affirmed as to liability, but will be reversed in part, and remanded for a new trial on the question of damages. ¹²¹ Briefs filed in this Court by the various parties aggregate 257 pages.

We allowed a total of four hours for oral argument. More than twenty contentions must be considered and decided. We shall recite additional facts as they are appropriate to the points being discussed. Since our partial reversal is based upon an error in the damage instructions, we shall discuss that point first.

Present Value of Future Losses As Damages in Wrongful Death Cases “The General Assembly of this State, in the year 1852, finding the common law maxim, ‘Personal actions die with the person’, unsuited to the circumstances and condition of the people, enacted a law entitled ‘An Act to compensate the families of persons killed by the wrongful act, neglect, or default of another person.’ ” So said Chief Justice Bowie for the Court of Appeals in 1866 in the case of Coughlan v. B. & O. R. R. Co., 24 Md. 84 , at page 100. The act referred to, Laws of Maryland, 1852, ch. 299, patterned after Lord Campbell’s Act in England, created a cause of action which did not exist at common law, designated the class of persons who could assert the cause of action, and provided that “* * * the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought * * *”. 1 In Coughlan the Court of Appeals for the first time considered the measure of damages “proportioned to the injury resulting from such death” as provided for in the ¹²² act. The appellant there, the mother of a minor son killed by a railroad car, objected to the damage instruction given by the trial judge because it confined her claim to pecuniary damages, and limited the pecuniary loss to the minority of the child. The Court compared and weighed the reasoning of the authorities, English and American, and found no error in the rulings of the court below.

At the same term, the Court in B. & O. R. R. Co. v. Kelly, 24 Md. 271 , noted that “punitive damages are not recoverable in such a case as this, under the Act of 1852”, and went on to say, at page 281: “ Tt has been held, that these damages are not to be given as a solatium, but are to be given in reference to a pecuniary loss. It is also clear, that the damages are not to be given merely in reference to the loss of a legal right, for they are to be distributed among relations only, and not to all individuals sustaining such a loss. If then the damages are not to be calculated on either of these principles, nothing remains, except that they should be calculated in reference to a reasonable expectation of a pecuniary benefit, as of right or otherwise, from the continuance of the life.’ In Dalton v. R. R. Co., 93 Eng. C. L. 296, it was said ‘that the reasonable expectation of pecuniary advantage by the relation remaining alive, may be taken into account by the jury, and damages may be given in respect of that expectation being disappointed, and the probable pecuniary loss thereby occasioned.’ ” The measure of damages was articulated in more detail in a prayer approved by the Court in B. & O. v. State, Use of Trainor, 33 Md. 542 (1871) as follows: “If, under the instructions of the court, the jury should find for the plaintiff, then, in assess ¹²³ ing the damages, they are to estimate the reasonable probabilities of the life of the deceased, Trainor, and give the equitable plaintiffs such pecuniary damages, not only for past losses, but for such prospective damages as the jury may find that they have suffered, or will suffer, as the direct consequence of the death of the said Trainor; that for his children, these prospective damages may be estimated to their majority, and as to the widow, to such probability of life as the jury may find reasonable under the circumstances.” Instructions embodying the same principle were approved by the Court in B. & O. v. State, Use of Woodward, 41 Md. 268 (1875), R. R. Co. v. State, Use of Bitzer, 58 Md. 372 (1882), Pikesville etc. R. Co. v. Russell, 88 Md. 563 , 42 A. 214 (1898), and many other cases.

A refinement of the stated measure of damages was made by the Court of Appeals in Reisterstown Tnpk. v. State, 71 Md. 573 , 18 A. 884 (1889), when it approved a similar prayer, but said, at page 584: “Although not perhaps as explicit as it might be, yet fairly interpreted it means, as we understand it, that in estimating the prospective damages to the widow, the jury are to take into consideration the reasonable probabilities of her life and the life of her husband, or, in other words, the probable duration of their joint lives. And as no obj ection was made to the instruction in this respect in the cases above referred to, nor any in the one now before us, we must assume the jury so understood it. It may be proper, however, to say, that in order to prevent any misunderstanding in regard to the matter in the future, it would be better and safer to say that in estimating the prospective damages to the widow the jury were to take into consideration the probable duration of their joint lives.” ¹²⁴ It was inevitab’e that the bench and the bar would develop as a further refinement, that damages to be realized periodically over a given period of future time, should be reduced to present value. Strangely, the principle seems to have crept into the law by common acceptance, for the Court of Appeals has never had occasion to rule squarely upon it.

The earliest indication of its consideration is found in Consol. Gas Co. v. Smith, 109 Md. 186 , 72 A. 651 (1909), where the Court used the present value rule to test the prejudicial effect of evidence, admitted over objection, that the widow had no property or means of support. The Court said, “The admission of such testimony is therefore irrelevant, in any case, and must tend to prejudice one of the parties in any event.” But the Court went on to say, at pages 206 and 207: “But in the case before us the jury has, very clearly, successfully resisted the apprehended appeal to their sympathy, and have not permitted themselves to go beyond moderate compensation. The uncontradicted proof is that Smith was a young man about twenty-eight years of age, in perfect health, and earning $65 a month, or about $800 a year.

The widow, in view of her husband’s age, must have been a comparatively young woman, and the son was born after the father’s death. The father’s duration of life, calculated by any standard mortuary tables, would have covered the minority of the child, and the widow’s expectation of life would have covered the same period at least. The total amount allowed the widow and child was $4,800. Assuming that this could have been permanently invested at six per cent, per annum, it would produce annually only about one-third of the annual earnings of the deceased, and that sum must be less than they would have received if he had lived, and is not adequate for ¹²⁵ their proper food and clothing and shelter.

If the principal were drawn on to supply the deficiency of income, it would be exhausted by the time the child reached majority, or even before he reached the age of labor sufficient to sustain himself. We cannot therefore find any evidence whatever that the verdict was influenced by the testimony admitted, and we would not be warranted in reversing the judgment for a technical error with no concurring injury.” The principle was recognized in B. & O. R. R. Co. v. Whitacre, 124 Md. 411 , 92 A. 1060 (1915), but only from the standpoint of the evidence required for its application. The propriety of the rule itself was not in issue. The case did not involve a death, but a disabling injury.

The Court said, at pages 430 and 431: “The eleventh and twelfth exceptions were taken to the admission by the Court of the evidence of an insurance expert, in giving from his tables the value of an income, such as the plaintiff was receiving at the time of the accident. This evidence was of course intended as a guide for the jury in determining the proper amount of damages to be awarded.” The Supreme Court of the United States was required to rule squarely upon the point in 1916, in an appeal from the Court of Appeals of Kentucky which had affirmed the judgment of a trial court in a suit brought in the State court under the Federal Employers’ Liability Act. The Kentucky courts had declined to apply the present value rule, and the Supreme Court reversed. Chesapeake & O. R. Co. v. Kelly, 241 U. S. 485 , 60 L. Ed. 1117 , 36 S. Ct. 630 .

At pages 489 and 490 the Court said: “The damages should be equivalent to compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased. ¹²⁶ (Citations omitted) So far as a verdict is based upon the deprivation of future benefits, it will afford more than compensation if it be made up by aggregating the benefits without taking account of the earning power of the money that is presently to be awarded. It is self-evident that a given sum of money in hand is worth more than the like sum of money payable in the future. Ordinarily a person seeking to recover damages for the wrongful act of another must do that which a reasonable man would do under the circumstances to limit the amount of the damages. (Citations omitted) and the putting out of money at interest is at this day so common a matter that ordinarily it cannot be excluded from consideration in determining the present equivalent of future payments, since a reasonable man, even from selfish motives, would probably gain some money by way of interest upon the money recovered.” Another recognition of the rule in a disabling injury case, where the rule itself appears to have been taken for granted, is found in Baltimore Transit Co. v. Worth, 188 Md. 119 , 52 A. 2d 249 (1947).

The Court of Appeals found no error in permitting an insurance company actuary to testify to the value, on the date of plaintiff’s injury, of a life annuity, for a man of plaintiff’s age, which would provide a weekly income of a stated amount. The objections raised were that plaintiff’s name was not given in the question, and that the standard annuity tables the witness used were not explained to the jury. The Court held that the plaintiff’s date of birth, given in the question, was sufficient reference to him, and that the average man knows what is meant by actuary tables. At pages 142 and 143.

The present value rule was again recognized as valid, although not an issue, and although its application in a specific question was rejected, in the wrongful death case ¹²⁷ of Scott v. James Gibbons Co., 192 Md. 319 , 64 A. 2d 117 (1949). The Court said, at page 331: “It is the practice, to establish damages in a case like this, to prove joint life expectancy by an actuary who uses established mortality tables, and annuity tables, showing a sum of money that would produce an income equal to the loss occasioned by death.” The Court agreed that the lower court correctly sustained an objection to a question which included elements the Court considered improper. One year later, in Baltimore Transit Co. v. Castranda, 194 Md. 421 , 71 A. 2d 442 (1950), the Court discussed the measure of damages in a wrongful death case in which it is apparent that the question of reduction of future losses to present value was not raised. At pages 436 and 437 the Court said: “This Court has held that in any action brought under the statute for death caused by negligence, the jury may award damages for pecuniary losses which have already been sustained by the equitable plaintiffs and for pecuniary losses which they may probably suffer in the future as the result of the death.

No damages shall be awarded as a solace for the grief or mental suffering of relatives of the deceased. (Citations omitted) In the case of the children of a person killed by negligence, the jury may estimate the prospective damages up to the time of their marriage or majority. The children may recover for the loss of the comforts, education, and position in society which they would have enjoyed if their father had lived and retained his income and they had continued to form part of his family.” * * $ “In awarding damages sustained by a widow ¹²⁸ for the death of her husband caused by negligence, the jury in estimating her prospective damages, should take into consideration the probable duration of the joint lives of herself and her husband if he had not been killed.” This was the state of the published law of Maryland when the United States Court of Appeals, Fourth Circuit, in United States v. Guyer, 218 F. 2d 266 (1954), a suit under the Federal Tort Claims Act for wrongful deaths and injuries which occurred in Maryland, said at page 268: “Under the law of Maryland the measure of recovery for wrongful death in a case such as this is the present value of the pecuniary benefit which the wife and children of the deceased might reasonably have expected to receive from him if he had not been killed.” The detailed mechanics of applying the present value rule are illustrated in the opinion of Judge Watkins as fact finder in the U. S. District Court in Maryland in Jennings v. United States, 178 F. Supp. 516 (1959). Judge Watkins stated the Maryland rule as to damages as given in Castranda, supra, but said, citing Guyer, supra, that such recovery is measured by the present value of the pecuniary benefits lost.

With one reference to the principle, in B. & O. R. R. Co. v. Whitacre, supra, in 1915, and one direct application of it, in Baltimore Transit Co. v. Worth, supra, in 1947, cases involving injuries, but not death, it does indeed appear that “reduction of damages to present value is not customary in Maryland except in cases of wrongful death”, as the Court of Appeals observed in Hutzell v. Boyer, 252 Md. 227 , 249 A. 2d 449 . However, characterization of the rule as customary in wrongful death cases does not mean that it is any less the law in such cases, nor that a judge may properly decline to instruct the jury upon it when such instruction is requested. ¹²⁹ Judge Howard properly instructed the jury, in accordance with Baltimore Transit Co. v. Castranda, supra, on the measure of damages sustained by members of the Walston family resulting from Mrs. Walston’s death. In noting exceptions, counsel for Sun Cab and Ash contended that the damages for the family should first be considered as a unit, then allocated among the several plaintiffs. The judge restated, by way of review, the instruction he had given on allocation, and appellant’s counsel then said, “I am not dissatisfied, but there is a point I think was omitted and I don’t know, I think it’s a valid exception as it then follows the point that you are instructing on.

As a matter of law, you must then reduce that amount to its present value based upon a discount factor to be determined by you.” The judge said that such an additional instruction was not required. We hold that it was required, and that failure to give it was reversible error. Preliminary Questions A. Reference in Opening Statement to Amount of Damages Claimed. Sun Cab and Ash made a pretrial request that all counsel be instructed not to mention before the jury at any time during the trial the amount sued for.

Whether to grant the request was in the trial court’s sound discretion. The Court of Appeals expressed itself clearly on this point in Jimmy’s Cab v. Isennock, 225 Md. 1 , pages 8 to 10, 169 A. 2d 425 , reiterated in Drug Fair v. Smith, 263 Md. 341, at 354 , 283 A. 2d 392 . No more need be said. The trial court prefaced its advisory instructions with the explanation that opening statements and the closing remarks of counsel are in no way evidence in the case and should not be considered as such.

The request was denied. We find no abuse of discretion. ¹³⁰ B. Voir Dire Questions to the Jury Panel. Appellants submitted several questions which they desired to have asked of the jury on voir dire. All were asked but one.

The rejected one was: “Has any member of this jury panel served as a juror prior to being called for jury duty with this present panel? If the answer is in the affirmative then: a. Has anything ever occurred in any prior case in which you served as a juror which would prevent you from fairly deciding the issues in this case?” The purpose of voir dire examination of a jury panel, and the function and discretion of the trial judge have been fully discussed by the Court of Appeals in Bryant v. State, 207 Md. 565 , at pages 581 to 583, 115 A. 2d 502 , and Casey v. Roman Catholic Archbishop, 217 Md. 595 , at pages 603 to 607, 143 A. 2d 627 , and by this Court in Phenious v. State, 11 Md. App. 385 , at pages 387 to 390, 274 A. 2d 658 , and in other cases cited in those opinions. Applying the principles laid down in those cases we find no abuse of discretion by the court in declining to ask the question quoted above.

Appellants also claim that four prospective jurors should have been disqualified for cause. The claim as to two of them is based upon Code, Art. 51, § 6 (b) (vii), which disqualifies a prospective juror who is a party in a civil suit pending in the court in which he is called to serve. In response to questions which were asked, one prospective juror said she had been injured in a car accident, and had a “claim pending”, and another said he was a plaintiff in a pending case. There was no showing that either the claim or the case was pending in the court in which the jurors were called to serve.

In addition, two other prospective jurors said they knew one of the attorneys in the case. Each said that this fact would not prevent rendering a verdict according to the evidence. ¹³¹ The judge did not excuse any of these four for cause. In any event, none of them sat on the jury in this case, and there could be no prejudice. 5A C.J.S., Appeal and Error, § 1708. Rulings on Evidence Relating to Liability A. Testimony of Investigating Officer.

Officer Leon Gray, of the Accident Investigation Division of the Baltimore Police Department, was called as a witness by counsel for the Walstons. He was asked a series of questions tending to show that he was qualified by training and experience in investigation of motor vehicle accidents. Counsel for appellants cross examined the witness on his qualifications. The answers showed that the officer had also had experience and training in accident reconstruction.

When asked to rule upon the qualifications of the witness, the court ruled that Officer Gray was an expert in both investigation and reconstruction of automobile accidents. Appellants complain that the court erred in ruling that the witness was qualified as a reconstruction expert. This determination was within the discretion of the court, Nizer v. Phelps, 252 Md. 185 , 249 A. 2d 112 . That discretion was properly exercised.

The point is academic, however, since Officer Gray was never called upon to express an expert opinion in either field. Appellants further urge that the trial court erred in denying their motion to strike testimony of Officer Gray relating a statement he had heard from another police officer. In his direct examination the witness had been asked if there had come a time when he heard that the cab had been struck in the rear. la Appellants’ objection, on two stated grounds, was properly overruled. The officer answered that he heard it at the manslaughter trial, in the Traffic Court Building.

In cross examination it ¹³² was brought out that there were two separate hearings, one on a traffic charge and one on a manslaughter charge. Officer Gray attended one but not the other. He then corrected his earlier' statement by saying that the information was related to him by his superior, a Sergeant Colburn. Appellants moved to strike the testimony on the point.

The court reserved its ruling at that time, but later granted the motion, and so informed the jury. Actually, the testimony need not have been stricken. The question being inquired into was not the ultimate fact of whether the cab had been struck from the rear, but whether Officer Gray had heard such a statement made, and if so, when. Neither his first answer nor the corrected version was hearsay.

McCormick on Evidence, at pages 460 and 461, says the term “hearsay” should be limited “to situations where the out-of-court assertion is offered as equivalent to testimony to the facts so asserted by a witness on the stand. Only then does the want of such safeguards as cross-examination become material.” In 2 Jones on Evidence, § 271, the author says: “If a statement previously made out of court is offered in evidence through a witness or a writing, not for the purpose of establishing the truth of the matter stated, but merely for the purpose of establishing the fact that the statement was made, the evidence is admissible, if it is relevant, and it is not subject to the exclusionary impact of the hearsay rule.” Error is also asserted in denial of appellants’ motion to strike that part of the police officer’s testimony concerning a causal connection between smooth tires and a wet road, and the accident. Appellees asked several questions designed to elicit such an answer, but appellants’ objection to each was sustained, and appellees abandoned the point. As the court later said, “there was nothing to strike”.

In the course of Officer Gray’s direct testimony he stated that when he left the scene, he went to the Lu ¹³³ theran Hospital to talk to Mr. Ash, from whom he received the “license and information”. The officer said he was “unable to take a statement” from Mr. Ash, “due to his injury and also to his company policy and instructions”. When questioned by appellees’ counsel, the officer further said that he saw a Mr. Kaufman at the hospital, and identified him as “with the insurance company” that insures Sun Cab Company. Appellants’ objections to this testimony were overruled.

They assert error. The evidence was admitted as explanatory of the reason why Officer Gray took no statement from Mr. Ash, although he had taken statements from Mr. Moore and his son, and from the driver of a Cadillac which was struck by the cab after its collision with Moore’s truck. We think it was within the discretion of the court to admit the evidence for this purpose. As long ago as 1937 the Court of Appeals held in Yellow Cab Co. v. Bradin, 172 Md. 388 , 191 A. 717 , that a reference to insurance did not constitute prejudice when the reference was material, and that the jury was presumed to know that the law required taxicabs to be covered by public liability insurance.

In Rhinehart v. Lemmon, (not reported) 29 A. 2d 279 , the Court said that admissibility on any ground required admission, and material evidence was not to be suppressed because it suggested the possession of insurance. See also Takoma Park Bank v. Abbott, 179 Md. 249 , 19 A. 2d 169 , Keitz v. National Paving & Contracting Co., 214 Md. 479 , 134 A. 2d 296 , and Casey v. Roman Catholic Archbishop, supra. The Court of Appeals spoke most recently on the question in Snowhite v. State, Use of Tennant, 243 Md. 291 , 221 A. 2d 342 . There Judge Barnes, writing for the Court, said, at page 301: “Generally speaking, the law is well established that in an action to recover for personal injuries or wrongful death, evidence which informs the jury that the defendant is insured against liability is not admissible. * * * This ¹³⁴ general doctrine, however, is not only subject to several well recognized exceptions but the modern trend is toward a relaxation of the rule.” In admitting this evidence, the court invited instructions with respect to its probative value.

None was offered. There was no error. B. Impeachment by Appellant Ash of Testimony of Eyewitness Called By Him. Appellant Ash called as a witness one William McCullough.

He was examined on direct by counsel who represented Ash in his capacity as a plaintiff. 2 He said that on the day of the accident he was driving a Checker Cab east on Edmondson Avenue. He was in a lane to the right, so as to bear right on the ramp to Hilton Parkway. He saw a cab ahead of him in the left lane. He said a pick-up truck in the left lane passed him, and then he said: “It seemed like the truck was pushing the cab like on the bumper.

I didn’t see exactly whether it was on the bumper or not, but it seemed like it was pushing it and it cut away from it.” He said the pick-up truck then cut to the right in front of him and went down Hilton Parkway. In cross examination of Mr. McCullough these questions and answers were recorded: “Q Did you actually see the pick-up truck ¹³⁵ come in contact in any way with the rear of the taxicab? A No, I didn’t actually see it. Q Then you don’t know that it came in contact with the rear of the taxicab, do you?

A Not right offhand, I don’t.” In redirect examination of the witness, counsel for Ash asserted a claim of surprise, saying that in a pretrial statement by the witness the version of the impact of the truck and the cab was different from his answers in cross examination. On that basis, he asked to be allowed to impeach his witness. The court denied the request. The ruling was correct.

Circumstances under which a party may claim to be surprised by the evidence of a witness called by him, and what proceedings may thereafter take place, were discussed by the Court of Appeals in Green v. State, 243 Md. 154 , 220 A. 2d 544 , and Mondawmin Corporation v. Kres, 258 Md. 307 , 266 A. 2d 8 , and by this Court in Vandergrift v. State, 13 Md. App. 277 , 282 A. 2d 528 and Jenkins v. State, 14 Md. App. 1 , 285 A. 2d 667 . No further discussion of the law involving surprise by a witness is necessary. Indeed, the facts presented by this record are not within the application of the rule. When the court, in the broad discretion it has in such cases, permits use of a prior inconsistent statement by way of cross examination to impeach one’s own witness, the sole purpose is to explain why the witness was called, and the maximum effect of showing the inconsistency is to nullify testimony already given by the witness in the trial.

A prior inconsistent statement used to impeach a witness has no substantive probative value. West v. Belle Isle Cab Co., 203 Md. 244 , 100 A. 2d 17 . The reason why Mr. Ash called Mr. McCullough as a witness was sufficiently explained by his direct examination, with which counsel for Ash was apparently satisfied. Any inconsistencies developed thereafter were self-explanatory. ¹³⁶ C. Attempt to Impeach Testimony of Ash as a Witness.

Appellants assert there was error committed by the court when counsel for one of the appellees attempted to lay a foundation for impeachment of Mr. Ash as a witness by inquiring about a prior inconsistent statement. We have carefully examined the pertinent part of the transcript. The court overruled objections to several questions which appeared to be designed to lay the necessary foundation, but the answers of the witness were equivocal. Counsel apparently concluded that he had not established a proper foundation, since no impeachment was attempted.

Campbell, etc. v. Patton, 227 Md. 125, 141 , 175 A. 2d 761 . There was no error in the court’s rulings. D. Admissibility of Photographs. Walston Exhibit la was a photograph of the taxicab, taken at the scene by a police officer on the day of the accident.

Officer Gray identified it, and testified that it accurately represented the condition of the taxicab when he arrived at the scene. It was properly admitted in evidence. Thereafter the witness was shown a “blowup” of a part of Exhibit la. After examining it he answered in the affirmative that it was an accurate portrayal of the appearance of the right rear wheel and tire at the time of his investigation at the scene.

The “blowup” was admitted in evidence over objection as Walston Exhibit 3. Subject to certain general rules requiring that they be competent and material, the admissibility of photographs is largely within the discretion of the court. Nocar v. Greenberg, 210 Md. 506 , 124 A. 2d 757 ; Marlow v. Davis, 227 Md. 204 , 176 A. 2d 215 ; and Sisk v. State, 236 Md. 589 , 204 A. 2d 684 . There was no error in admitting Walston Exhibit 3 in evidence.

During cross examination of appellees’ witness Raymond E. Hensley, appellants showed the witness a series of photographs, taken in August 1968, and asked him whether they represented the scene of the accident as it ¹³⁷ existed on July 28, 1967. Generally, the witness answered in the affirmative, except that he said that the shrubbery, trees and bushes had been cut and trimmed at the time of the accident, and the condition shown in the photographs was different. The photographs were offered in evidence by appellants. Some were admitted without objection, some over objection.

Objections to those identified as Sun Cab-Ash Exhibits 9a, 9b, 9c, 10a, 10b and 10c were sustained. Later in the trial appellants called Richard J. Dunkerly as a defense witness. He testified that he was a laborer for the Bureau of Parks of the City of Baltimore, and that on the day of the accident, he was in charge of a crew of temporary summer employees, cutting and trimming grass in the vicinity of the intersection of Edmond-son Avenue and Hilton Street. He said that his crew was not trimming trees and shrubbery.

He did not see the accident, but was nearby, and went to the scene. The witness was shown Sun Cab-Ash Exhibits 9a and 9b, and said that each fairly represented the scene as it existed on the day of the accident. They were offered in evidence. Objections by appellees were sustained.

In discussion at the bench, appellants also offered Sun Cab-Ash Exhibits 10a, 10b and 10c. All were excluded. Appellants assert error. Whether to admit the photographs in evidence was clearly within the discretion of the court, and we find no error in their exclusion.

E. Evidence of Recollection of Contents of Unavailable Public Service Commission Inspection Report. Realizing the need to counter testimony of Officer Gray, Charles L. Williams, and Raymond E. Hensley, and photographic evidence that the tires on their taxicab were smooth or bald, appellants undertook to do so by calling as witnesses a common carrier inspector and a supervisor employed by the Public Service Commission. Hugh D. Stracham testified that he was a common carrier inspector for the Commission. When asked if he had any recollection of being at the Sun Cab Company ¹³⁸ to inspect a vehicle in July, 1967 he said that he had not.

He was withdrawn, subject to recall. James W. Cramer, Transportation Supervisor for the Commission, testified that on July 28, 1967, shortly after the accident, he had inspected the taxicab involved, and that he had his report of that inspection. He said that this particular vehicle had been inspected on the premises of the Sun Cab Company four days earlier, on July 24, 1967, by Mr. Stracham. Mr. Cramer said that when he made his inspection after the accident, there were also present Mr. Stracham and a Mr. Konn, of the Commission, and two men from Firestone Tire and Rubber Company.

He said that a tire gauge was used to measure the tread on the tires. Two of the tires were on the vehicle and two were off. He said his report indicated that there were no cuts or bumps in the tread. There was no minimum requirement at that time as far as treads were concerned.

He was not present at the inspection made on July 24th, and did not know that the tires on the cab on July 28th were the same ones. Mr. Cramer said that his report was kept in the regular course of business. It was marked for identification as Sun Cab-Ash Exhibit 16. It was never offered in evidence.

With regard to Mr. Stracham’s inspection of July 24, 1967, Mr. Cramer said of the regulations required in the inspection: “It’s made to go to the color scheme, properly identified number and fleet, all the parts being on, such as the doors, windshield wipers, glass in windows, lights working front and rear, and muffler, and any other defects that are noticed. The tires would be inspected, naturally, to see if they had any defects that were noticed and that could be hazardous to the health, safety, and welfare of the riding public.” He said a form is used for the inspection, and he had seen and reviewed Mr. Stracham’s report, but that it had since been destroyed and was no longer available. ¹³⁹ He said he had a personal recollection of what the report stated. The court did not permit Mr. Cramer to testify to his recollection of the contents of Mr. Stracham’s report. At this point Mr. Cramer was excused, and Mr. Stracham was recalled.

He was asked to explain his guidelines for inspection of tires, and said, “If the tire had a visible tread on it and a good cord and if there was no showing of any bumps or cuts, that would be my guideline.” Since that time, he said, the Public Service Commission has guidelines. Appellants proffered to show what the subsequently adopted guidelines were, and the court rejected the proffer. Mr. Stracham was asked what he did in 1967 in inspecting tires, and said: “In checking a tire we walk around the car and inspect the tire and it is felt for any bumps, and we check the front end of the tires and if it shows any visible signs of wear on the tire they put it out of the service by using the State sticker you put it out of service, put it on the side of the right rear door on the glass. Then we call the shop steward and tell him what’s wrong and not to take the cab out of the yard until it is re-inspected.” Mr. Stracham said again that he had no recollection of having seen the taxicab on July 24, 1967, and said also that he did not see it on the date of the accident.

On this aspect of the case, appellants say that the court erred, a) in not permitting Mr. Cramer to testify to his recollection of the contents of Mr. Stracham’s report of July 24, 1967, and b) in not permitting Mr. Stracham to testify to standards for tire inspection adopted by the Public Service Commission some time after the accident. We see no need to consider whether the Stracham report, no longer in existence, could be proved as a lost document, and being thus restored to a presumptive existence, would be admissible in evidence as a record of ¹⁴⁰ the occurrence made in the regular course" of business. Code, Art. 35, §§59 and 60. The only possible inference from the evidence showing that an inspection was made on July 24, 1967, and showing the procedure followed in such inspections, is that the tires were approved under the standards then applied.

There was no proffer of the contents of the report, and we cannot assume that it contained more. We agree that evidence of subsequently adopted standards was irrelevant, and inadmissible. Even if those standards had been admitted, there was nothing in evidence to be compared with them, and they could have served no purpose. Rulings on Evidence Relating to Damages A. Evidence of Earnings and Expectation of Increases.

Betty G. Stein, a personnel officer in the Baltimore Department of Social Service, testified that Dorothy A. Walston was employed by the department as a “Social Worker, Assistant 1” at the time of her death, at a salary of $6,518 per year. She testified to various automatic increments since that time which such employees received as state classified employees, and to one automatic promotion to “Social Worker, Assistant 2”, which she said was based solely upon the passage of a period of time, and would have applied to Mrs. Walston. With only these automatic changes, the witness testified that from January 1, 1971, Mrs. Walston’s salary would have been $10,075 annually. Appellees attempted to establish an intent on the part of Mrs. Walston to pursue post graduate studies to obtain a Master’s degree and thereby attain a higher classification, but the court ruled that such evidence was speculative, and instructed the jury to disregard it.

Clearly the jury was not being invited to speculate in considering the earnings which the evidence showed Mrs. Walston would have been receiving at the time of trial. There was no error in admitting this testimony. ¹⁴¹ B. Evidence of Cost of Domestic Services. Samuel I. Kaplan, operator of an employment agency in Baltimore which places domestic workers, was called as a witness for the Walston family. Appellants filed a motion to limit, or as expressed in the transcript, to preclude, his testimony.

A copy of his pretrial deposition was attached to the motion. The motion asserted that the witness should not be permitted to testify because his deposition showed that his only insight into the domestic circumstances of the Walston family was that there were six children, but that he was not aware of their ages or sex, did not know the area in which they resided, nor the manner in which they were accustomed to living,