Charles S. McGowan as Administrator of the Estate of Mary Louise McGowan Deceased v. Thurston M. Gillenwater and Terry L. Gillenwater

Fourth Circuit

Charles S. McGowan as Administrator of the Estate of Mary Louise McGowan Deceased v. Thurston M. Gillenwater and Terry L. Gillenwater

429 F.2d 586, 1970 U.S. App. LEXIS 7939

CourtCourt of Appeals for the Fourth Circuit

DecidedJuly 29, 1970

Docket14212_1

StatusPublished

Cited by41 cases

This text of 429 F.2d 586 (Charles S. McGowan as Administrator of the Estate of Mary Louise McGowan Deceased v. Thurston M. Gillenwater and Terry L. Gillenwater) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Charles S. McGowan as Administrator of the Estate of Mary Louise McGowan Deceased v. Thurston M. Gillenwater and Terry L. Gillenwater, 429 F.2d 586, 1970 U.S. App. LEXIS 7939 (4th Cir. 1970).

Pincite

Opinion

PER CURIAM:

The appellant seeks a new trial on the issue of damages in this personal injury case. With respect to the principal assignments of error, we affirm for the reasons stated in the district judge’s opinion.

The appellant also contends that the district judge erred in striking the ad damnum clause of the complaint and in refusing to allow a per diem argument on the question of damages. We find the district judge did not abuse his discretion in barring from the jury the amount of damages alleged in the complaint. This was no part of the proof, and it had no role to play in the jury’s consideration of the case. Williams v. Nichols, 266 F.2d 389 (4th Cir. 1959); Craven v. Associated Transport, Inc., 40 F.R.D. 8 (D.S.C.1966). Indeed the better practice ordinarily is to withhold all pleadings from the jury. The function of the pleadings is to notify court and counsel of the bare bones of the controversy, and rarely do they have any evidentiary value. The appellant’s contention concerning the per diem argument was never properly presented to the district judge, and it cannot be raised at this time.

The judgment is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

The appellant seeks a new trial on the issue of damages in this personal injury case. With respect to the principal assignments of error, we affirm for the reasons stated in the district judge’s opinion.

The appellant also contends that the district judge erred in striking the ad damnum clause of the complaint and in refusing to allow a per diem argument on the question of damages. We find the district judge did not abuse his discretion in barring from the jury the amount of damages alleged in the complaint. This was no part of the proof, and it had no role to play in the jury’s consideration of the case. Williams v. Nichols, 266 F.2d 389 (4th Cir. 1959); Craven v. Associated Transport, Inc., 40 F.R.D. 8 (D.S.C.1966). Indeed the better practice ordinarily is to withhold all pleadings from the jury. The function of the pleadings is to notify court and counsel of the bare bones of the controversy, and rarely do they have any evidentiary value. The appellant’s contention concerning the per diem argument was never properly presented to the district judge, and it cannot be raised at this time.

The judgment is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

429 F.2d 586, 1970 U.S. App. LEXIS 7939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-s-mcgowan-as-administrator-of-the-estate-of-mary-louise-mcgowan-ca4-1970.

Opinion

Related

Cite This Page — Counsel Stack