Edwards v. Lawton, D-154636

• Decision Date: 25 May 1964
• Docket Number: No. D-154636,No. 18216,D-154636,18216
• Citation: 244 S.C. 276,136 S.E.2d 708
• Court: South Carolina Supreme Court
• Parties: William EDWARDS, Respondent, v. Billy Lucian LAWTON and one 1955 Chevrolet Automobile, S. C. License(1963), Appellant.

Page 708

136 S.E.2d 708

244 S.C. 276

William EDWARDS, Respondent, v. Billy Lucian LAWTON and one 1955 Chevrolet Automobile, S. C.

License No. D-154636 (1963), Appellant.

No. 18216.

Supreme Court of South Carolina.

May 25, 1964.

Paul Montjoy, Greenville, for appellant.

Richard J. Foster, Greenville, for respondent.

TAYLOR, Chief Justice.

This action was instituted in the County Court for Greenville County before the Honorable James H. Price, Jr., for personal injuries and property damage arising out of an automobile accident. The jury returned a verdict for plaintiff in the amount of $5,000.00 actual damages.

The only question for determination is whether the trial Judge committed error in permitting plaintiff's attorney, over objection of the defendant, to argue to the jury that if the jury found plaintiff was entitled to compensation for pain and suffering, one of the allowable methods of computing such compensation was through the use of a per diem formula, and in further allowing plaintiff's attorney to illustrate the use of such formula on the blackboard.

It has been settled in this State that counsel may use a blackboard during jury argument to illustrate points that are properly arguable or to bring to the jury's attention facts or figures properly revealed by the evidence. We stated in Johnson v. Charleston & W. C. Ry. Co., 234 S.C. 448, 108 S.E.2d 777:

'There is no impropriety in counsel's use of a blackboard, during his argument to the jury, for the purpose of fairly illustrating points that are properly arguable. 53 Am.Jur., Trial, Section 490; 88 C.J.S. Trial Section 177; Lauderdale County Cooperative v Lansdell, 263 Ala. 5578 83 So.2d 201; Nehi Bottling Co. of Ellisville v. Jefferson, 226 Miss. 586, 84 So.2d 684; Annotation: 44 A.L.R.2d 1205. Calculations made, or diagrams drawn, thereon are of course not evidence. Like statements of counsel in oral argument, they should have reasonable foundation in the evidence or in inferences fairly arguable from the evidence. Just as oral argument may be abused, so may such visual argument; and its abuse may be so flagrant as to require a new trial. Control of the arguments of counsel, with regard to the use of such visual aids, as with regard to oral statements, rests in the sound discretion of the trial judge. Johnson v. Life Insurance Co. of Georgia, 227 S.C. 351, 88 S.E.2d 260, 55 A.L.R.2d 813; Andrews v. Cardosa, Fla.App., 97 So.2d 43; Miller v. Loy, 101 Ohio App. 405, 140 N.E.2d 38.'

In Harper v. Bolton, 239 S.C. 541, 124 S.E.2d 54, counsel in the lower Court was permitted to endorse on a blackboard his own personal opinion as to the per diem value of pain and suffering. Finding error in such presentation, we said:

'In allowing counsel for the respondent to endorse on a blackboard his own opinion as to the per diem value of pain and suffering was to permit him to make an argument that had no foundation whatever in the evidence. Though wide latitude and freedom of counsel in arguments to the jury are and ought to be allowed, such arguments cannot be based on facts not in the record, or inferences based on or drawn from facts which are not even admissible in evidence.'

The transcript of record contains the argument objected to by defendant, the pertinent parts of which appear as follows:

'* * * Mr. Foreman and gentelen of the jury, there is no market price on the value for pain and suffering. There is no rule of damages that we could come in here and say that this plaintiff is entitled to so much pain for an arm injury or so much pain for a foot injury. Whatever I say to you with regard to any suggestions about how you may arrive at a verdict is argument and you must consider it so. Any determination for pain and suffering is solely a matter within your province; and it is solely a matter for your judgment. But, if you find that this plaintiff has suffered pain, you may go further and you may decide that he is entitled to have compensation for that pain. You may use any one of a number of methods of arriving at that, and one of them is this; you may decide to try to estimate his pain by what we call a per diem, what may be called a per diem value. It has been almost four months, certainly more than four months since the accident. Now, is he entitled to any compensation I ask you in all fairness, for the suffering that he has endured from the time of this accident up until the day of this trial? * * * Now, if you decide, and you may decide, that he is entitled to fifteen dollars a day, or ten dollars a day, or five dollars a day, or nothing; but if you decide that over the period of the last four months for this one hundred and twenty days, if you should find as a fact that he is entitled to ten dollars a day for that pain and suffering, let us put it...