¶1dissenting:
¶2I respectfully dissent.
¶3We start with the fact that Annot., Evidence-Mortality Tables, 50 A.L.R.2d 419 (1956), states:
“It appears to be the unanimous view in this country in those jurisdictions where the question has arisen that the admissibility of mortality tables, or testimony pertaining thereto, in a personal injury action is dependent upon proof that the injury was permanent.” Id. at 421.
¶4I know of no authority in Maryland to the contrary. Therefore, the inquiry must be as to whether there was sufficient evidence before the court to warrant a conclusion that there was permanent injury.
¶5*140In Bottling Co. v. Lowe, 176 Md. 230, 4 A. 2d 440 (1939), quoted by the majority, the Court stated:
“[T]he testimony of Dr. Ward and Dr. Collins tends to show that the appellee’s disability is a permanent one.” Id. at 242.
¶6The record in that case included testimony by Dr. Collins:
“[I]n my judgment he has a seventy-five per cent disability.”
¶7In Sim-Kee Corp. v. Hewitt, 13 Md. App. 296, 282 A. 2d 525 (1971), cited by the majority, the examination of Dr. Beck relative to the plaintiff’s injuries as stated by this court includes:
“Mr. Abato: ‘Alright sir, thank you. Now doctor, can you also state with a reasonable degree of medical probability, whether the Plaintiff will have any permanent disability as a result of the injuries for which you treated him?
“Dr. Beck: T think he will continue to have these pains for an indefinite period of time. Whether you want to call it permanent or not, I don’t know.’
“Mr. Abato: ‘Well, what do you call them, sir?’
“Mr. [sic] Beck: T would characterize them as permanent.’ ” Id. at 300.
¶8Accordingly, I conclude that neither Bottling Co. nor Sim-Kee is authority for the fact that the combination of passage of time, continued physical complaint, and indefinite or inconclusive medical testimony will suffice to prove permanent injury.
¶9In Kujawa v. Baltimore Transit Co., 224 Md. 195, 167 A. 2d 96 (1961), one of the issues before the Court was whether the trial court properly refused to allow the jury to consider permanency of injuries. The accident took place on November 21, 1956. Trial began on March 8, 1960, a little less *141time after the accident than in the case at bar, but not much. Judge Horney there said for the Court:
“In order to understand the exception in so far as the son is concerned, a summary of his injuries and of the testimony concerning them is essential.
“The hospital records disclosed that the son had received a frontal fracture of the skull and a brain concussion. He was hospitalized for six days and was discharged as a ‘well boy.’ The son was not called as a witness, but the mother testified that he was more difficult to manage after the accident and that he had frequent headaches and dizzy spells and had twice fallen during ‘blackouts’ after the accident. At the time of the trial he had been suspended from school for disciplinary reasons, but there was also evidence tending to show that he had been somewhat of a problem in school prior to the accident. Other than the medical evidence given by Dr. Gillis there was none to connect the condition of the son (at trial time) with the accident. Dr. Gillis testified that when he began to treat the son about a month after the accident he complained of headaches and dizziness. When asked what effect the injuries he had received might have on the son in the future, the doctor replied:
T cannot give you a definite opinion. It is too indefinite. This condition may persist or there may be some improvement. It is very, very difficult to determine a matter of that type. The only thing that makes me a little bit dubious about his future is the fact he was injured way back in 1956, … and there is still complaint of headaches and dizziness and difficulty in school. Now the usual head concussion symptoms clear up in a much shorter time than that. This boy still has headaches and dizziness. Therefore, I think *142there is a probability it may persist. I can’t be sure, of course.’
When asked how long the dizziness and headaches would persist, the doctor answered: T cannot tell you at all. There is no rule which I can go by …. The boy needs further treatment. I think his treatment is helping him some now.’ And when he was asked how much longer the treatments should continue, the doctor said ‘six months longer.’
“On these facts, the Kujawas contend, since there was some evidence of permanent injury to both the mother and the son, that the question should have been submitted to the jury and that the instruction was therefore erroneous.. . .
“The question here is whether the evidence produced was sufficient to also require submission to the jury of a question as to the permanency of the injuries in addition to the submitted issue involving ‘suffering in the future.’ We think not.
“Certainly evidence tending to show only a possibility of permanency is not sufficient to take that issue to the jury. In Mangione v. Snead, 173 Md. 33, 195 Atl. 329 (1937), where the plaintiff was an infant at the time of the accident and there was testimony by his mother that the child was normal before the. accident and that after the accident he was stupid and got into mischief all of the time, this Court, in pointing out that there must be something more than a conjecture or possibility of the fact to support a finding of permanent injury, said at p. 51:
‘[Bjefore it can be said that the effect of an injury is permanent, it must appear that it is caused by some condition caused by the injury which is not likely to change, but such an inference cannot be drawn from the condition itself, when it is accompanied by no physical impairment or defect, is sub*143jective, and offers no intrinsic indicia of its probable duration.’
“While it is a fact that Dr. Gillis testified that there was a ‘probability’ that the headaches and dizziness of the son might persist, he did not and apparently could not say that his condition was such that it was ‘not likely to change.’ On the contrary, though he could not say how long the condition might last, he stated definitely that he thought ‘certainly six months longer.’ The doctor’s testimony accurately described the son’s actual condition and was sufficient to justify the instruction of the court that ‘such injuries may extend into the future’ but could not be treated as extending ‘for the duration of the life’ of the son.
“A ‘permanent injury’ has been variously defined as an injury that will ‘last throughout life,’ Colby v. Thompson, 207 S. W. 73 (Mo. App. 1918); an injury that may ‘be followed by permanent impairment of earning power or producing irremedial pain,’ Herndon v. Waldon, 47 S.W.2d 1047 (Ky. 1932); and an injury ‘lasting during future life of injured party,’ Sykes v. Republic Coal Co., 22 P. 2d 157 (Mont. 1933). The courts have also drawn a distinction between ‘suffering in the future’ and a ‘permanent injury.’ See, for example, Colby v. Thompson, supra; Stahlberg v. Brandes, 299 S. W. 836 (Mo. App. 1927). We think the lower court was correct in refusing to allow the jury to consider permanency of injuries under the particular facts of this case. See Baer Brothers, Inc. v. Keller, 208 Md. 556, 119 A. 2d 410 (1956), and the cases therein analyzed.” Id. at 205-07.
¶10In Craig v. Chenoweth, 232 Md. 397, 194 A. 2d 78 (1963), Judge Sybert said for the Court:
“The appellants’ other contention is that ‘there is uncontradicted evidence from which a conclusion of *144permanency may be drawn’ and that therefore it was error to instruct the jury that they could not return an award for a permanent injury of any type. Again, we are constrained to disagree. The applicable rule as to proof of permanency of injuries was recently set out in the case of Kujawa v. Baltimore Transit Co., 224 Md. 195, 167 A. 2d 96 (1961), wherein it was stated on page 206 of 224 Md. that, ‘[cjertainly evidence tending to show only a possibility of permanency is not sufficient to take that issue to the jury.’ In the present case there was no medical testimony showing, or even tending to show, that the injuries suffered by Mrs. Craig were permanent in nature. Dr. Irey, when asked how long treatment would last, stated ‘[t]hat would be a guess …. It. would be hard to say,’ and that he could not put any time limit on the duration of the injuries. When the appellants called a Dr. Reynolds (a specialist to whom Mrs. Craig had been referred for treatment to her neck and shoulder), he was not asked whether the injuries were permanent, but it is significant that he did testify that he had discharged Mrs. Craig from formal treatment prior to trial because of her improvement and stated his belief that any further treatment could be administered by the appellant wife herself. Thus there was insufficient evidence to take the issue of permanency to the jury and the trial judge was correct in so instructing them. The judge did, however, instruct the jury that, if they found for the plaintiffs, Mrs. Craig would be entitled to recover for conscious pain and suffering that she endured as a result of the accident, down to the time of trial and for such time in the future as the jury should determine that she would so suffer. This, we think, was all that she was entitled to, under the evidence presented.” Id. at 401-02.
¶11In Straughan v. Tsouvalos, 246 Md. 242, 228 A. 2d 800 (1967), Judge Murphy said for the Court of Appeals:
*145“We have consistently rejected the proposition that the jury may form a judgment or conclusion on the basis of testimony which admits of mere possibilities. The test to be applied, whether the question involved be the existence of an injury or its cause, is reasonable probability or reasonable certainty. Ager v. Baltimore Transit Co., 213 Md. 414 (1957).” Id. at 257.
¶12The majority opinion states in footnote 2 that “[r]ecent cases draw a distinction as to whether or not there are physical impairments or only subjective complaints,” pointing to Kujawaand Raines v. Boltes, 258 Md. 325, 265 A. 2d 741 (1970). In Rainesthe Court of Appeals reversed and remanded for a new trial on the issue of damages only, holding that the trial judge had erred in his refusal to instruct that there was no evidence of permanent injury. No expert testimony was presented. Judge McWilliams there said for the Court that “[a] plaintiff who attempts to establish future impairment from an injury which is essentially subjective in nature, such as the one in the case at bar [(injury of some type to the back)], without expert medical testimony, bears a heavy burden.” It is true that in this case the husband testifed that his wife “still had extreme difficulty with speech and coherency,” but in the absence of medical testimony to the effect that these difficulties stemmed from the accident, one could hardly label them as such “physical impairments” as would make expert testimony unnecessary.
¶13In my judgment, the expert testimony here tendered was too nebulous in form to warrant a reversal of the trial judge’s refusal to admit into evidence the mortality tables tendered. Accordingly, I would affirm.