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Leizear v. Butler

Decided: July 10, 1961.

LEIZEAR ET AL.
v.
BUTLER ET AL. (TWO APPEALS IN ONE RECORD)



Appeal from the Circuit Court for Prince George's County; Marbury, J.

Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ. Hammond, J., delivered the opinion of the Court. Brune, C. J., concurring in part and dissenting in part.

Hammond

Three suits were instituted in the Circuit Court for Montgomery County as a result of a collision between a Montgomery County police car driven by the appellant West, a county police officer, in which the appellant Leizear, a fellow officer, was a passenger, and a taxicab owned by the appellee Central Cab Company and operated by its driver, the appellee Butler. West and Leizear sued for damages for personal injuries and medical expenses, and Montgomery County sued for damages to its automobile. The Cab Company and Butler were the original defendants in all three suits. They impleaded West and Montgomery County in the Leizear suit as third party defendants. Montgomery County's motion to dismiss the third party claim against it was granted and there was no appeal from that order. On suggestion of the original defendants all three cases were removed to Prince George's County and there tried before the court and a jury. The jury returned the following verdicts: in the West suit, for the defendants, the Cab Company and Butler; in the Leizear suit, for the plaintiff, Leizear, against the defendants, the Cab Company, Butler and West, for $405.92; in the Montgomery County suit, for the defendants, the Cab Company and Butler. Motions for new trials by West, Leizear and Montgomery County were overruled, and judgments were entered upon the verdicts. Only West and Leizear appealed.

The facts: In the back seat of an unmarked police car, the police officers had a youth suspected of a crime, and were looking for another suspect. They thought a youth on a bicycle nearby might be the one they were looking for. The police car either slowed down from a speed of about 25 miles an hour to 10 or 15 miles an hour, or stopped entirely. Butler, driving the cab, starting down an incline somewhat (the exact distance is not clear) behind the police car, looked over at a new building then under construction. When he looked back he saw the police car just ahead of him and says he could not stop in time, or swerve far enough to the left, to avoid his cab's striking the left rear of the police car. The question of whether or not due warning of the police car's slowing down or stopping was given by arm signal or by light was submitted to the jury.

In West's appeal the only question which calls for determination is whether the trial court erred in submitting his contributory negligence to the jury. The record shows no exception to have been taken to the court's charge as to West's negligence, and the matter is not before us for review, Maryland Rule 554 e. We were told at the argument that a part of the transcript pertaining to a conference in chambers with regard to the instructions has been lost. If this point was then raised and was properly preserved, the result is not altered, for the evidence of West's sudden slowing down or stopping without warning was sufficient to call for the submission of the question to the jury and to warrant the jury in finding that West had been negligent. Baltimore Transit Co. v. Prinz, 215 Md. 398, 404. It is obvious that the same evidence which sustains the finding against him of contributory negligence as regards the Cab Company and Butler is also sufficient to show primary negligence in relation to Leizear.

Leizear's appeal presents different problems. That he was not contributorily negligent was established by the verdict for him against the original defendants and the impleaded third party defendant, West. The jury's verdict was for his claimed special damages of $405.92, consisting of hospital and medical expenses, the expense of transportation for medical

treatments and lost wages at his average weekly rate of $83.46 for the two weeks that he was not on duty following the accident. Leizear contends (a) that it was prejudicial error for the trial court to admit evidence that he was paid his wages by Montgomery County during the period of his absence from work, and (b) that since the verdict allowed him nothing for pain and suffering, and was so inadequate the judgment for $405.92 should be reversed and the case remanded for a new trial. The trial court correctly ruled that the amount of Leizear's damages was not to be reduced because of the payment of his wages by his employer during the period of disability due to the accident, Plank v. Summers, 203 Md. 552, but, nevertheless, permitted Leizear to testify over objection that Montgomery County had paid him his regular salary during the time he was not working after the accident. Courts in other states have held that such testimony is admissible if there is evidence in the case of malingering or exaggeration of injury (McElwain v. Capotosto (Mass.), 122 N. E. 2d 901; Union Transports, Inc. v. Braun (Tex. Civ. App.), 318 S. W. 2d 927; cf. Ridilla v. Kerns (Mun. Ct. App. D. C.), 155 A.2d 517) but is inadmissible if there is no such evidence or if the question is asked for the real purpose of mitigating the liability of the defendant (R. E. Dumas Milner Chevrolet Co. v. Morphis (Tex. Civ. App.), 337 S. W. 2d 185; McElwain v. Capotosto, supra, at page 902 of 122 N. E. 2d; Hellmueller Baking Co. v. Risen (Ky.), 174 S. W. 2d 134).

In the case at bar the essence of the defense was that if Leizear had been injured at all it was but very slightly. Butler and the Cab Company showed that immediately, within a minute or two, after the accident Leizear said that he was not hurt, that he went to a housewarming party for a brother police officer that night, that while there he had talked with a lawyer and said that he then needed an attorney, not a doctor, that Leizear was able to drive his car the twelve or fifteen miles between his home and the doctor's office for examination and for a number of treatments during his period of claimed temporary disability (total for two weeks, partial for one) and that he visited a grocery store during

such trips. Leizear testified that he began to feel pain a few minutes after the accident, that he suffered considerable pain while at the housewarming party, that he had to sit down during almost all of his visit, and that when he made the remark about needing a lawyer he had already seen a doctor at the hospital. The treating physician testified that in his opinion Leizear could make the relatively short drives between his home and the doctor's office without injury and that the use and position of his arms while driving would not cause or increase pain, since his pain would be made worse only when the arms were raised to or above a horizontal plane.

There was testimony by the plaintiff Leizear that he had suffered pain from his injuries, that he had been disabled for two weeks from performing any of his duties as a police officer, that for another week he had been able to perform only light duties around the station house, that for about three weeks he had had to wear a neck brace, and that for two months or more after the accident he had experienced occasional pains in his neck. Leizear's treating physician gave his opinion as to the extent, painfulness ...


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