Appeal from the Circuit Court for Anne Arundel County; Duckett, J.
Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ. Sybert, J., delivered the opinion of the Court. Horney, J., dissents.
Mary Ellen Denzik, plaintiff-appellee, suffered injury to her back when the automobile she was driving was involved in a collision with an automobile driven by the defendant-appellant, Nannie Brinand. At the trial of Mrs. Denzik's suit against Miss Brinand the matter of negligence was not in issue, it being conceded by the latter. The sole question submitted to the jury was the amount of damages due Mrs.
Denzik. The jury returned a verdict in the amount of $7,479.00. After judgment nisi was entered against her, Miss Brinand filed a timely motion for a new trial which the court denied, directing the entry of final judgment. Miss Brinand appealed from the judgment.
At the trial, Mrs. Denzik testified that prior to the accident she had worked as a clerk-cashier in a grocery store and earned $25.00 a week. She said she had not been able to work since the accident, though she had tried once. She was 24 years of age at the time of the accident. Dr. Landmesser, a specialist in orthopedics, testified that Mrs. Denzik had a permanent injury to her low back, but did not estimate a percentage of disability. He stated that she would not be able to work at any employment which would require repeated bending over and straightening up, or lifting articles, as was true in her prior job, but could engage in other work not involving such activities. No evidence was offered to prove Mrs. Denzik's life expectancy.
The only contention of Miss Brinand in this Court is that the trial court erred in denying her motion for a new trial in that it failed to consider a certain piece of paper on which the jury foreman had tabulated the damages.
The background of the controversial piece of paper was created by counsel for Mrs. Denzik in his closing argument, after the court's instructions had been given to the jury. The attorney summed up for the jury the medical findings described by Dr. Landmesser and the actual damages suffered by Mrs. Denzik. Then, in attempting to suggest a figure for permanent disability, he continued substantially as follows, as described in appellant's brief:*fn1
"Dr. Landmesser has told you that this lady has suffered a permanent injury. He did not state a percentage of disability, but suppose that it was ten percent of her low back, which is not a very large disability. If it was ten percent, and she was making $25.00 a week at the time of the accident, that's
$2.50 a week, or $130 a year. This girl has a life expectancy of 40 years, so that totals $5,200."
Counsel for Miss Brinand objected immediately and the trial judge sustained the objection and instructed counsel for Mrs. Denzik to refrain from such references. No further argument along these lines was made. Miss Brinand's counsel made no further issue of the allegedly objectionable remarks.
After argument of counsel was concluded, the jury retired to consider its verdict, which it returned in favor of Mrs. Denzik in the amount of $7,479.00. Thereupon the jurors left the box and the foreman gave the clerk the narr and a copy of the jury list on the back of which appeared the tabulation of damages which gave rise to this appeal. The figures were not seen by the clerk until after the jurors had gone, the judge had retired and counsel were leaving the courtroom. Counsel were called back by the clerk to note how the jury had made up their verdict.
The notations on the back of the jury list read as follows: