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

Court of Appeals for the Fourth Circuit·Decided July 29, 1970·No. 14212_1·Published·Cited by 41 cases

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.

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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.

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

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) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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