SMITH, P. J.
Plaintiff sued for personal injuries and recovered $20,000.00. Defendant assigns the following errors: (1) Striking of evidence going to the issue of proximate cause; (2) Plaintiff’s ‘per diem’ argument; (3) The use of a chart in connection therewith; (4) Prejudicial statements in argument; and (5) Instructions. We will discuss them in that order with particular emphasis on the first three.
The proximate cause issue is somewhat involved. During the cross-examination of plaintiff, defendant elicited admissions that he had been involved in automobile accidents both before and after the occurrence sued on. This occurrence took place on April 16, 1956 while plaintiff was driving to work. The evidence showed that after crossing an intersection defendant had crashed into him from the rear resulting in severe “whip-lash” injuries. The cross-examination, to which plaintiff made timely objection, is as follows:
Q. Now, around the first of March you had an accident, is that correct, before this one?
The Court: Are you going to connect it up ? Defendant’s Counsel: Yes,lam.
I was stopped at a sign. I was bumped in the rear by a little Henry J — pushed my trunk handle in and that was it. The only damage was around the handle of the trunk. I could have pounded that out myself, but still left the imprint of the handle. I pounded some of it.
Q. Now, following this accident, and directing your attention to April, 1957, were you involved in an accident on that occasion on Eoute 62 and Busse Highway?
The Court: Connect it up ?
Defendant’s Counsel: Sure I am, your honor.
A. Yes. On that occasion my front headlight was struck. . . .
Q. After this accident happened, didn’t an accident in your home happen where you fell on the rug and landed on your back? A. No sir.
Defendant offered no evidence to “connect” these accidents with plaintiff’s injury, and instead argues, that when viewed in connection with plaintiff’s own medical testimony, there is a sufficient connection shown, that even standing alone, there is a sufficient relationship, and that in any event, no duty devolved on him “to connect it up,” because the burden of proof on the issue of proximate cause is always with the plaintiff and never shifts. The trial court disagreed, struck the testimony and instructed the jury to disregard it. Defendant says that in doing so, the court was improperly shifting the burden of proof to his shoulders and in effect, was directing a verdict against him on the issue of proximate cause, that is, that the court was telling the jury that these accidents had nothing to do with plaintiff’s injuries and, by the same token, that plaintiff had, as a matter of law, shown a causal relationship between his injuries and the accident sued on. Defendant also argues that this redounded to the benefit of plaintiff by heightening the credibility of his medical witnesses.
The general rule is that the burden of proof rests on the party who has the affirmative of the issue, as determined by the pleadings, and the usual test employed to determine on which side the burden of proof lies, is to ascertain which party would be entitled to a verdict if no evidence were offered. While the burden of going forward with the evidence may shift from party to party, the burden of proof never shifts during the course of the trial and remains on the party asserting the affirmative of the issue. Noyes v. Gold, 310 Ill. App. 1, 34 NE2d 1. True, the burden of connecting up these ‘before and after’ occurrences, as either contributing (before), or intervening (after) causes, devolved on defendant, but this is not shifting the burden of proof. To phrase it another way, because plaintiff did not have a duty to negate affirmatively as part of his case the causal relationship between these ‘before and after’ occurrences and the one he sued on, is not saying that plaintiff was relieved of the burden of demonstrating that his injuries were proximately caused by the occurrence of April 16. In like measure, the fact that plaintiff bore this burden successfully does not mean that it then shifted. It did not. The burden of proof is not cast on a defendant in giving him the right of defending himself against a prima facie case, if by burden of proof the defendant means that the plaintiff was relieved from establishing his case at the onset.
In Hederick v. Uptown Safe Deposit Company, 21 Ill. App.2d 515, 159 NE2d 58, there is a quotation from Thayer’s Preliminary Treatise on Evidence, 378, which neatly summarizes the situation:
“We see that the burden of going forward with the evidence may shift often from side to side; while the duty of establishing his proposition is always with the actor and never shifts.”
And as pointed out by Professor Edward W. Cleary, Handbook of Illinois Evidence (1956), the burden of proof actually has two aspects (page 70): “(1) the burden of producing evidence as to a particular matter, and (2) the burden of persuading the trier of fact as to the existence thereof. Egbers v. Egbers, 177 Ill. 82, 52 NE 285 (1898).” He further states: “The burden of producing evidence may shift from party to party as the case progresses, but the burden of persuasion never shifts.”
Proximate cause was a part of plaintiff’s case. It was as indispensable as the elements of defendant’s negligence, plaintiff’s freedom therefrom, and damage. Without it, plaintiff’s action would have failed. But when he has borne the burden of proof and established the material elements necessary to make out a case, it is then the defendant’s right, but certainly not his duty — to pnt on his defense. This is not shifting the burden of proof. One cannot be said to have a burden if one may pick it up or not as he pleases. Obviously if there is evidence negative of causation, a defendant should show it, but the law in according him the privilege of going forward in no wise shifts to him the burden of proof as the law knows that phrase. In Behnke v. President of the Board of Trustees, 366 Ill. 516, 9 NE2d 232, it is stated:
“The phrase ‘burden of proof’ is a much abused term because it has been the tendency of courts and lawyers to use the phrase loosely to mean either (1) the need of establishing the existence of a fact or facts by evidence which preponderates to a legally determined degree; or (2) the task resting upon a party litigant, at any particular time during the trial, to create a prima facie case in his own favor or to destroy one when created by the opposing litigant. ‘Burden of Proof’ should be restricted to the first situation, and burden of going forward with evidence is a more exact expression to use in denominating the second situation.”
Defendant argues that these ‘before and after’ occurrences should have been left in for consideration by the jury; “that where there could be more than one cause of the damage it is the plaintiff’s burden to prove which one caused it”; “that where two causes could be the cause of the damage, plaintiff had the burden of proving which one caused it”; “That defendant has the right to elicit, upon cross-examination, other possible causes, and upon eliciting such evidence to have all the evidence as to such causes submitted to the jury.” These would be correct statements of the law, were it not for the fact that the evidence elicited on this cross-examination does not establish even remotely, a possible “cause” or “causes” of plaintiff’s injuries. No jury could reasonably infer from these incidents that one or both of them were related to the injuries plaintiff sued on. In short, as to both, there was no nexus. To elevate testimony that sometime before the rear-end accident in question plaintiff had been bumped, bending a trunk handle, and that after the accident and before the onset of a more serious lower-back complaint, his front head-light was struck, to the. status of contributing or intervening causes, suitable for submission to triers of the fact, is to misread standards of relevancy required as pre-conditions of admissibility. That this requirement devolves on the defendant to the same extent as on plaintiff initially in presenting his case, which it does, does not shift the burden of proof, or indeed have anything to do with it. It is a question of relevancy, pure and simple.
Relevancy describes evidence that has a legitimate tendency to prove of disprove a given proposition that is material as shown by pleadings. (See 1 Wigmore on Evidence, 3d Ed., Sec. 2.) That intervening and contributory causes are material to the issue of proximate cause is implicit in the very nature of things, and taken as a matter of course in actions of this kind. They are material propositions that may be proved. The question here is whether the evidentiary facts offered by defendant did prove either one or both of them. Relevancy has been defined as a tendency to establish a fact in controversy, or to render a proposition in issue more or less probable. To be probable, evidence must be viewed in the light of logic, experience and accepted assumptions concerning human behavior. We think on all these counts, viewing the evidence as a whole, reading text in context, that the cross-examination failed to produce evidence that had a tendency to establish any fact which would render plaintiff’s proof of proximate cause less prohable.
Nor did the court’s action invade the province of the jury, as defendant contends, by directing a verdict or by lending a greater credence to the testimony of the plaintiff and his medical witnesses. Matters improperly in evidence should be stricken. If some hardship may attach to that act, the one who induced such action has little grounds for complaint. And this possibility is exactly what occasioned the Court’s insistence that the evidence suggested by the initial questions be “connected up.” In each situation, examining counsel gave his assurance that it would be. When he failed to make such examination partake of the relevant he surely cannot complain. He was put on guard that such action would be taken if he failed. Such action was implicit in the query from the bench: “are you going to connect it up?” Failure at the very least would occasion an instruction to disregard. Surely in this context, when warned in advance, his present alarums cannot be seriously considered.
We do not mean to imply that the cross-examination was improper, or beyond the scope of direct. It was not. It was directed towards a material issue. The trouble is that while it started it never arrived. And when risk of damage to one party’s case becomes apparent, from a line of questioning that up to then lacks the probability of tending to prove or disprove anything material, the court should obtain an assurance, if sought, that relevancy will be established. Granger v. Turley, 20 Ill. App. 2d 488, 156 NE 2d 610 (1959). If the assurance turns out to be an empty gesture, that which has been shown should be stricken to remove what lingering impact it may have. It is no answer to say, that in doing just that, possible attendant psychological harm may ensue to the assurer’s case. We doubt that it does, but if it does, he has no cause for complaint.
A perfect example involves the slip on the rug. Seemingly no prejudice would ensue, for the negative answer ended the inquiry. Notwithstanding, the “slip” remained, hanging in the courtroom air. To the untrained ear it might seem that this incident may have had something to do with plaintiff’s injuries. At least plaintiff’s counsel thought so, and thinking so, it was his right, indeed his duty, to move to strike. Relief was accorded in striking it and instructing the jury to disregard it. Defendant does not complain of this action, and we merely recite it for the purpose of showing that what started out as valid cross-examination ended up by injecting an irrelevant, improper, and possibly prejudicial fact into the case. As to this testimony, such is abundantly clear, and upon analysis, and to the same extent, and in like vein, is the testimony as to prior and subsequent accidents.
We next turn to defendant’s contention that plaintiff’s opening argument was prejudicial. While the argument was not novel in the sense that the trial bar would be less than astounded, it is novel so far as Appellate Courts in this State are concerned. We refer to what we shall call, the “per diem argument” for pain and suffering.
Defendant apparently sensed that this type of argument was about to be made and prior to its advent objected — “if that is his plan — .” Counsel for plaintiff responded:
“I don’t make any secret about my plans as far as the closing argument is concerned to the Jury. ... I do plan to use, and I believe I should be entitled to, not a blackboard, but a plain white sheet of paper which is completely blank, and mark it as an exhibit for identification so it can become a part of the record in the case, for purely demonstrative purposes and for illustration and properly demonstrate the question of damages to the Jury. . . . Anything I write thereon, either figures or number, become a part of the record, but the use is purely for the purpose of demonstrating to the Jury and in aiding in interpreting the difficult questions and very complicated questions of damages in this case.”
Defendant’s request that the Court instruct plaintiff’s counsel not to use a chart to write on and not to argue damages on an hourly, daily, weekly, monthly, or yearly basis, for pain and suffering was denied. It was understood, and indeed, stated by counsel that any chart used in the computation of pain and suffering, while marked as an exhibit, would not go to the jury, and would be used solely for demonstrative purposes, “as a skeleton model that we used in the case,” and would be included in the record on appeal. It has been. We have inspected it and it looks like this:
14.7
1. Nature and Extent $10,000.00
$50,140.90
2. Pain and Suffering
April 16,1956
11,680 hours 11,680.10
5.100.00 510 days
8.760.00 3. Future Pain
4. Hospital and Medical
$873.00 + $415.90 1,288.90
5. Lost Earnings $ 2,432.00
2,880.00 5,312.00
6. Permanency 8,000.00
7. Workability
As promised, counsel commenced writing the figures shown above. We can best savor them in context with his argument, which began by breaking the two-year period of time immediately after the accident into hours, allowing and deducting eight hours per day for sleeping.
“Now, this man was making around three dollars and twenty cents an hour on his job, is that right? That is three dollars and twenty cents an hour. Would I be reasonable if I suggested to you that you cut his rate of pay for suffering down to one dollar an hour and only give one dollar an hour or eleven thousand six hundred and eighty dollars for the suffering?”
Having dealt with this two-year period, counsel next calculated the remaining time up to the date of trial:
“Now, let’s put it into hours in the last two years. Let’s confine it to a per diem type of situation. Is it logical to say that he is entitled to ten dollars a day up to today? That isn’t one dollar an hour for suffering. It is less than one dollar an hour, and is that unreasonable? If we said that, that would be fifty-one hundred dollars, which would bring us up to today.”
Future pain and suffering was handled thusly, based on a life expectancy of 24.52 years:
“. . . that would be 8760 days and at $1.00 a day instead of $10.00 a day, figuring at 8760 days, you would have the figure for future pain. So we would give him eight thousand seven hundred and sixty dollars for future pain.”
The argument closed in this vein:
“But may we total these figures now for you, and this is what we are entitled to recover in this case, these elements. And I suggest to you these are reasonable figures. If Counsel can show us a better way to compensate this man, let him show you. . . . We have suggested to you and tried to show to you that a logical verdict and a fair verdict in this case would be fifty thousand one hundred and forty dollars and ninety cents. And I ask counsel to go ahead and show to you something else, if he can show it.”
Defendant’s attack is on a broad front. First, he contends that there is no such thing as a mathematical formula to determine the amount of damage to be paid for pain and suffering. This is true. Tables for ascertaining the value of pain and suffering do not exist as facts susceptible of proof. But the fact of pain and suffering is recompensed in dollars. If this is so, it does thereby furnish a basis for an argument, qua argument, that pain and suffering have a monetary value. It is not evidence of course. It is argument. Argument is to be distinguished from the presentation of evidence. Argument is the piecing together of evidentiary facts in combination with the ordinary rules of logic and rhetoric. If pain and suffering were not recompensed in money then as a matter of logic the argument would be bad. But such is not the logic of the situation because such is not the law.
A plaintiff, in the first instance, in his complaint, pleads damages for pain and suffering in dollars. Since the law permits a prayer for a specific amount, it would follow then, in logic, that this figure could be argued. In Graham v. Mattoon City Railway Company, 234 Ill. 483, 84 N. E. 1070, 1073 (1908) it was so approved:
“ We say to you, gentlemen of the jury, and repeat it again, that the evidence shows a case of a man who, in sound health weighed 300 pounds ... an active man, whom this cornpany trusted and employed; that this man is permanently injured; that the sum of $10,000.00 which he asked you to give him in his declaration is what he should fairly have, gentlemen of the jury.’ The objections made to these remarks is that they refer to the amount claimed in the declaration. We do not think that there is any valid objection to counsel, in argument, telling the jury what, under the evidence, counsel considers a fair compensation for the injuries received.”
If the total amount can be argued, what logical objection is there to arguing its components? That such an argument may be thought by many to be more persuasive than arguing a gross amount is no reason, standing alone, to forbid its use.
True, no unit value can be assigned per hour or per day for pain and suffering. There is obviously no basis m fact for saying mathematically that because a man is employed at $3.20 an hour, he should be paid $1.00 per hour for pain and suffering. But because this ‘fact’ is not susceptible of proof, and on that everyone would agree, it does not mean that it cannot be argued, for the argument is then based, as all arguments must be, on the evidence — the evidence of pain and suffering plaintiff experienced, which must be compensated for in money.
Let us make our meaning more precise. Arguments must be based on the evidence. Facts in evidence may be pieced together to form such argument. The argument that results is not evidence. The facts here are that pain and suffering existed and that legally, hence logically, they are worth money. Certainly, if it is within the ambit of proper argument to take this fact, apply the law and argue for a given total, then the method of arriving at the total would, we think, be proper argument too. If the jury can hear the whole, why not its parts? Total amounts necessarily are composed of lesser amounts. What is wrong in knowing what they are ?
Defendant further contends that the argument places him in an “unjustifiable dilemma,” that is, he is forced into arguing the issue of damages. This may be true, but it is not a dilemma, and if it is, then it is not unjustified. An argument in mitigation of damages can be successfully made without implying an admission of liability. Trial counsel have been doing it for years and we can see no reason why a per diem argument renders it less likely. Defendant, here, chose in large part to argue matters other than damages. But that was his choice. He apparently thought below that the negligence issue should be stressed in argument. He does not make it here. He implies now that because of this dilemma he could not have done so without admitting liability. But this is no more so than in any other case of this kind. We are certainly not going to arrogate ourselves to the judgment of trial counsel as to what a proper counter-argument might be, but we are convinced of this, it can and will be devised. We note in passing, too, that the verdict was less by half ($20,000.00) than the $50,140.90 shown on counsel’s chart. Defendant objects to the argument but not the result.
A thoughtful discussion of the per diem argument is found in Ratner v. Arrington, 111 So.2d 82 (Fla. 1959), and the following reasons assigned in its favor:
“(1) That it is necessary that the jury be guided by some reasonable and practical consideration; (2) that a trier of the facts should not be required to determine the matter in the abstract, relegated to a blind guess; (3) that the very absence of a yardstick makes the contention that counsel’s suggestion of amounts misleads the jury a questionable one; (4) the argument that the evidence fails to provide a foundation for the per diem suggestion is unconvincing, because the jury must, by that or some other reasoning process, estimate and allow an amount appropriately tailored to the particular evidence in that case as to the pain and suffering or other such element or damages; (5) that a suggestion by the counsel that the evidence as to pain and suffering justified allowance of a certain amount, in total or by per diem figures, does no more than present one method of reasoning which the trier of the facts may employ to aid him in making a reasonable and sane estimate; (6) that such per diem arguments are not evidence and are used only as illustration and suggestion; (7) that the plain danger of such a suggestion being mistaken for evidence is an exaggeration, and such danger, if present, can be dispelled by the court’s charge; and (8) that when counsel for one side has made such argument the opposing counsel is equally free to suggest his own amounts as inferred by him from the evidence relating to the condition for which the damages are sought.” 111 So.2d at 89.
See also L. & N. R. R. Co. v. Mattingly (Ky. 1960) 339 S.W.2d 155.
We agree in particular with one of the reasons assigned in the Ratner case, that the very absence of a standard relative to pain and suffering, argues loudly for the rule giving counsel full latitude in exploring and discussing this element of damages. To deny the use of the per diem argument seems to us a curtailment of the right of argument since it precludes the use of a persuasive technique, and what is argument if it does not persuade. We admit that this later phrase could be carried to absurd lengths. All persuasive techniques are not countenanced, but persuasive techniques that remain within and are a part of the traditional role of argument are proper and novelty is certainly no reason for nonacceptance.
Pain and suffering in the law of damages are probably unique in that they are non-certain and non-punitive. But unique or not they exist. Damages for hospitalization, property damage, and loss of work, to mention but a few are easily ascertainable; even exemplary and punitive awards can be approximated by a showing of the defendant’s worth. In every law suit such as this, damages are compounded of the so-called “specials,” and then to varying degrees, of those elements that defy monetary exactitude. Pain and suffering and future disability come immediately to mind. These have an elusiveness that defies immediate or even mediate reduction to dollar and cents. For that reason, the very lack of definitive criteria, no monetary admeasurement in terms of evidence is admissible. There are no experts in this field, no books, no charts, no tables that are authoritative. True, courts can tell when too much is too much or too little is too little. But within the bounds of too little and too much there is an area where discretion is at large, and this is a reason in itself, at least to the extent we have indicated here, that argument should have full sway.
To what end should we now enunciate a circumscription? Surely it is artificial restriction if we are to say to plaintiffs: “You can argue the gross figure but that is all!” Such a dictate does not commend itself. "Why not discuss the parts that make up the whole? We do not say that an advocate must or even should, but if in his judgment he deems such of greater persuasiveness, we can see no reason not to accord him that right. It is, after all, argument, not evidence. There is an approved cautionary instruction to that effect. Jurors certainly know, even absent this instruetion, that counsel in the case are not witnesses nor parties. They expect an argument. They are entitled to it. No one is seriously going to argne at this late date that they view lawyers’ arguments as evidence.
We summarize briefly our reasons for holding the per diem argument acceptable: In the first place, such an argument can suggest valid considerations for rendering the abstraction of pain and suffering comprehensible for concrete translation into dollars; Secondly, the argument is logically suggested by the evidence when read in context with the monetary determination that must be made; Thirdly, this line of argument falls within hitherto accepted bounds of advocacy and it is not apparent to us where it now o’er leaps them.
We think it follows that if the per diem argument is proper, then a chart may be used to follow the arithmetic. The use of demonstrative evidence, and in particular a blackboard, has been heretofore approved. People v. Fisher, 340 Ill. 216, 172 N.E. 743 (1930). Again, as with the per diem argument itself, defendant attacks its use on matters of auxiliary policy, that is, that the chart might be misconstrued as evidence. But the chart does not go to the jury room, it is not offered in evidence, it is but an adjunct of argument and we fail to see how it could be otherwise interpreted. We are rather of the opinion that a chart, as used here, is of great assistance. Problems in addition, subtraction and multiplication almost by definition are better delineated on paper. To be meaningful, they should be seen and heard, not just heard. To add, subtract and multiply without paper seems to us a waste of words. We therefore approve the use of the chart, particularly when it lends itself for easy incorporation in the record on appeal.
Defendant also asserts that plaintiff was guilty of prejudicial misconduct in his closing argument. During the course of the trial it developed that defendant had hired a professional camera man, who, unobserved, took four minutes of motion pictures during a four hour period while plaintiff was at work. Plaintiff said that this was “sneaking around.” We view the characterization as mild, under the circumstances, and certainly not error. Nor do we believe the statement by plaintiff’s counsel that a certain witness was called “in here to testify for the defense and to fabricate a story,” was prejudicial error, though it was uncalled for. Inconsistencies were developed in the testimony of defense witnesses and plaintiff’s counsel did not dwell further on it after objection. Defendant also objects to certain given instructions of plaintiff. We have examined them, they were properly given, and the allegation of error is without merit. The judgment appealed from is affirmed.
Affirmed.
McNEAL, J., concurs.