Norval Smith v. Thomas Brady and Holt, Rinehart & Winston, Inc.

Fourth Circuit

Norval Smith v. Thomas Brady and Holt, Rinehart & Winston, Inc.

390 F.2d 176, 11 Fed. R. Serv. 2d 1198, 1968 U.S. App. LEXIS 8416

CourtCourt of Appeals for the Fourth Circuit

DecidedJanuary 12, 1968

Docket11450_1

StatusPublished

Cited by10 cases

This text of 390 F.2d 176 (Norval Smith v. Thomas Brady and Holt, Rinehart & Winston, Inc.) 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

Norval Smith v. Thomas Brady and Holt, Rinehart & Winston, Inc., 390 F.2d 176, 11 Fed. R. Serv. 2d 1198, 1968 U.S. App. LEXIS 8416 (4th Cir. 1968).

Pincite

Opinion

PER CURIAM:

The defendants in this action for personal injuries seek to vacate a judgment of $22,500 on grounds that it is excessive and the result of prejudicial references by the trial judge to the ad damnum clause of the complaint. They challenge these portions of the charge which followed proper explanation of the measure and elements of the plaintiff’s damages:

“ * * * (The jury may) allow such damages as * * * will be a fair and just compensation for the injury which the plaintiff has sustained, not to exceed the sum of one hundred thousand dollars, the amount claimed in plaintiff’s complaint.

“The allegation of damages is not evidence, of course, but merely the extent of the plaintiff’s claim, and must not be considered by you as evidence.

“The allegations of the complaint as to the amount of damages * * * are not to be considered by you * * * except in this one respect, that the amount * * * claimed * * * does fix a maximum limit, and you are not permitted to award the plaintiff more than that amount.”

The instructions are not a correct statement of law. The amount of the plaintiff’s claim bears no relation to the verdict. The propriety of the verdict is tested by the evidence, not the ad damnum clause. Fed.R.Civ.P. 54(e); Riggs, Ferris & Geer v. Lillibridge, 316 F.2d 60 (2d Cir. 1963); Barron and Holtzoff, 3 Federal Practice and Procedure, § 1194, p. 38 (Wright ed. 1958).

Additionally, the instructions are misleading. They may leave the erroneous impression the court has ruled that any verdict not exceeding the plaintiff’s claim is proper. See Williams v. Nichols, 266 F.2d 389, 390, 393 (4th Cir. 1959). It is sufficient for the court to explain to the jury the correct measure of the plaintiff’s damages and the elements they should consider in reaching their verdict.

In this case we find the evidence supports the amount of the verdict. Un *178 der the circumstances the court’s reference to the ad damnum clause was not prejudicial. The judgment is

Affirmed.

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