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Johnson v. Zerivitz

Decided: March 10, 1964.


Appeal from the Superior Court of Baltimore City; Foster, J.

Brune, C. J., and Henderson, Hammond, Marbury and Sybert, JJ. Sybert, J., delivered the opinion of the Court.


On May 22 1960, after a taxicab operated by the appellant, James N. Johnson, had stopped to discharge a passenger, it was struck in the rear by a truck driven by the appellee, Robert Randall, an employee of the other appellees, Beryl Zerivitz and others trading as Pariser Bakery. The sole question before the jury was the nature and extent of the appellant's injuries resulting from the accident, liability having been admitted by all appellees.

The appellant claimed severe and disabling injuries, although he admitted on cross-examination that the accident produced no cut, mark, bruise or anything that could be seen on his body. The appellees took the position that the appellant was not injured as a result of the accident on May 22 1960; that he was consciously malingering and exaggerating his injuries; and that the injuries complained of had actually resulted from previous accidents, particularly from a similar accident two and one-half months before, on March 5 1960. The appellant attempted to show that any exaggeration of injuries was due to an unconscious

emotional injury, which had been caused by the accident of May 22 1960. The jury returned a verdict in favor of the appellant in the amount of $1,800. After a motion for a new trial was denied the appellant filed this appeal.

The appellant's complaint is that the verdict was grossly inadequate, in view of the injuries allegedly sustained, and he blames certain of the court's instructions for that result. He first maintains that the trial court improperly instructed the jury that there was no legally sufficient evidence to prove that the appellant sustained any emotional injury or disturbance as a result of the accident of May 22 1960. Our review of the testimony convinces us that the trial court's instruction on this point was correct.

In Wilhelm v. State Traffic Comm., 230 Md. 91, 185 A.2d 715 (1962), it was held that the causes of emotional disturbances are complicated medical questions, proof of which must be made by expert medical testimony. Cf. Craig v. Chenoweth, 232 Md. 397, 194 A.2d 78 (1963). In Wilhelm, Judge Prescott exhaustively reviewed the authorities on the point and said for the Court (at p. 101 of 230 Md.):

"There can be little doubt, we think, that a question involving the causes of emotional disturbances in a person sufficient to evoke, subconsciously, grossly exaggerated symptoms is an intricate and complex one, peculiarly appropriate for science to answer. To allow a jury of laymen, unskilled in medical science, to attempt to answer such a question would permit the rankest kind of guesswork, speculation and conjecture."

Several doctors in the field of neurosurgery, orthopedic surgery, and traumatic and internal medicine, who had treated the appellant, testified that his symptoms and responses were exaggerated, but they either were not asked, or stated that they could not say, whether this was intentional and malingering or whether the exaggeration was unconsciously caused by an emotional disturbance. As one doctor stated, in refusing to express an opinion as to what caused the exaggeration: "whether there is indeed a functional overlay [emotional

disturbance] present, [or] whether it is malingering, hysterical, or some other process, lies in the field of psychiatry." Only one psychiatrist testified. When asked, in a hypothetical question, his conclusion as to whether there was a causal connection between the accident of May 22 1960 and the appellant's condition (assuming an emotional disturbance), he stated that in his opinion the condition was "a direct result of the automobile accidents" (referring to both the accident of March 5 1960 and that of May 22 1960). This testimony was not sufficient to allow the question of emotional disturbance to go to the jury, since, assuming the jury found an emotional disturbance, it would be required to speculate as to how much, if any, of this disturbance was specifically due to the accident in question. Such speculation was condemned in the Wilhelm and Craig cases, supra, and hence the instruction on this phase of the case was justified.

The second issue raised by the appellant is that the trial court erred by "allowing the jury to consider the possibility that the plaintiff might not be entitled to recover any amount of damages by the use of the words 'if any' in discussing damages; and further by emphasizing said words". This issue requires little discussion. Since the appellees were contending that either the appellant had not suffered any injuries or that such injuries as he might have were caused by the prior accident of March 5 1960 or other previous accidents mentioned in the testimony, the inclusion of the words "if any" in the instructions to the jury was not error. Furthermore, even assuming that it would have been prejudicial ...

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