Evening Star Newspaper Company v. Gray

• Decision Date: 20 March 1962
• Docket Number: No. 2868.,2868.
• Parties: The EVENING STAR NEWSPAPER COMPANY, a corporation, and John Horan, Appellants, v. Ruth H. GRAY and Chester H. Gray, Appellees.
• Court: D.C. Court of Appeals

179 A.2d 377

The EVENING STAR NEWSPAPER COMPANY, a corporation, and John Horan, Appellants, v. Ruth H. GRAY and Chester H. Gray, Appellees.

No. 2868.

Municipal Court of Appeals for the District of Columbia.

Argued January 3, 1962.

Decided March 20, 1962.

Francis L. Casey, Jr., Washington, D. C., for appellants.

David G. Bress, Washington, D. C., with whom Lucien Hilmer and J. H. Krug, Washington, D. C., were on the brief, for appellees.

Before HOOD, Chief Judge, QUINN, Associate Judge, and MYERS, Associate Judge of The Municipal Court for the District of Columbia, sitting by designation.

HOOD, Chief Judge.

This case arose when defendant's van collided with the rear of another car, driving that car into the car in which plaintiff Ruth Gray was a passenger. Suit was filed in the United States District Court, seeking damages of $50,000 for Mrs. Gray and $20,000 for her husband. The case was certified to the Municipal Court¹ under Code 1961, § 11-756(a), and tried there solely on the issue of damages, the defendant admitting liability. Verdicts were returned in the amount of $8,000 for the wife and $3,000 for the husband. Defendant appeals from the trial court's denial of its motion for remittitur or, in the alternative, for a new trial. It assigns as error that the trial court in its instructions mentioned the ad damnum and told the jury that this was a certified case as to which the $3,000 jurisdictional limit on the Municipal Court did not apply; that the court permitted counsel for plaintiffs to argue damages for pain and suffering on a per diem basis; that the court failed to grant a mistrial when plaintiff's counsel mentioned the ad damnum on voir dire; and, lastly, that the amounts of the verdicts were excessive.

The court instructed the jury that the case had been certified from the District Court and that the $3,000 limit normally applicable to Municipal Court verdicts was therefore not applicable. On the other hand, the court refused to allow counsel for defendants to explain why the case was certified, or to include such an explanation in its instructions to the jury. The court acted correctly in all these instances. See Melton v. Capital Transit Co., 102 U.S.App" D.C. 306, 253 F.2d 42. The Code itself provides that, when a case is certified from the United States District Court, the jurisdiction of the Municipal Court "shall extend to the amount claimed in such action, even though it exceed the sum of $3,000." Code 1961, § 11-756(a). It would have been highly improper for the jury to have been told that the case had been certified because a District Court judge thought the case would not justify a judgment in excess of $3,000. The District Court Judge had not heard the evidence and was in no position to make a comparative evaluation of conflicting evidence. His appraisal of the case, sometimes made even before pretrial, is entitled to no weight by the jury which hears the evidence. Experience has proved that the District Court Judge's appraisal is often erroneous; and informing the jury of the reason for certification would serve no proper purpose.

With reference to the ad damnum, the court instructed the jury that

"* * * your verdict may be in such amount as you may determine to be fair, reasonable, and adequate, under the instructions on damages to be given to you by the Court.

"The plaintiff in a suit can never recover any more than is claimed. In the present case the plaintiff, Mr. Gray, is claiming $20,900 and the plaintiff, Mrs. Gray, is claiming $50,000. In this case as in any other case neither can recover any more than the amount claimed. The fact that in a certain case the plaintiff claims a certain amount does not mean they are entitled to recover that amount. This is a matter to be determined by you from the evidence and in the light of the law as I state it to you. The recovery can be for the amount claimed or for any sum less than the amount claimed which you might find from the evidence has been established. Recovery can never be in excess of the amount claimed."

On the question of the propriety of reference in the court's instructions to the amount sued for, the authorities are in hopeless conflict. See 15 Ainjur., 1961 Cum.Supp., Damages, § 371.5, p. 114, Practice varies even among the trial courts of the same jurisdiction.²

Well-considered decisions in several jurisdictions have held it to be reversible error to mention the ad dainnum in the charge. See Botta v. Brunner, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331, and cases there cited; Annotation, 2 A.L.R.2d 454. The argument against mention of the ad damnum was well stated by District Judge Paul, concurring in Williams v. Nichols, 4 Cir., 266 F.2d 389, 394:

"There is no sound reason why the jury should be informed, either by counsel or the Court, of the damages named in the complaint. It is a matter of common knowledge that ordinarily in a tort case, the damages laid in the complaint are in an amount arbitrarily chosen, greatly exaggerated, and having little, if any, value as a measurement of the damage actually suffered. It is being charitable to say that at best they represent the plaintiff's own opinion of what damage he has suffered. But neither the plaintiff nor anyone else would be allowed to go on the witness stand and testify as to his monetary estimate of the plaintiff's damages. This being so it is certainly objectionable to get the same estimate before the jury by the unsvvorn statements of counsel in the course of argument. It is even more harmful, because of the greater weight given it by the jury, when it comes from the bench in the Court's instructions. The basic evil is that it gives the jury the impression that the amount sued for (the plaintiff's own estimate) is significant and to be considered as a factor in arriving at such award as the jury may make."

We think that such statements as these, and decisions such as Botta v. Brunner and Simmons v. Adams, supra, are grounded upon an appraisal of the jury process to which we cannot subscribe. We agree with the Ninth Circuit Court of Appeals that there is no reason why the jury should be influenced by the amount claimed by the plaintiff, any more than by any other claims advanced by the parties. "Such claims are not evidence, and it is an insult to human intelligence to say that they are likely to mislead or otherwise influence the jury." Hoffschlaeger Co., Ltd. v. Fraga, 290 F. 146, 149.

Decisions of the Supreme Court and the highest court of this jurisdiction have taken the same view. In McDermott v. Severe, 25 App.D.C. 276, 288, affirmed 202 U.S. 600, 26 S.Ct. 709, 50 L.Ed. 1162, the court, after instructing on the measure of damages, told the jury:

"You must exercise your own best judgment in regard to that. Of course you are limited by the declaration, and cannot exceed the amount claimed, $25,000. Of course that is not a suggestion to you that you should take that as a criterion to go by. That is only a limit, above which you cannot go. It is not a suggestion that you should go to that amount. The question is simply: What is the proper compensation to this boy for this injury, in case you find a verdict in his favor? * * *"

It does not appear that this instruction was specifically objected to on appeal, but in affirming the Court of Appeals decision the Supreme Court held that the language of the charge was properly cautionary, and added: "We cannot see how the plaintiff in error was prejudiced by this instruction."

In Chesapeake & Ohio R. Co. v. Carnahan, 241 U.S. 241, 36 S.Ct. 594, 60 L.Ed. 979, the defendant objected to mention of the ad damnum in the instruction. The Court, calling the objection "untenable," said at page 244, 36 S.Ct. at page 595:

"As we have seen, the court explicitly enjoined upon the jury that there must be a proximate and causal relation between the damages and the negligence of the company, and the reference to the sum of $35,000 was a limitation of the amount stated in the declaration. There could have been no misunderstanding of the purpose of the instruction."

See also Norfolk & W. Ry. Co. v. Earnest, 229 U.S. 114, 120, 33 S.Ct. 654, 656, 57 L.Ed. 1096, in which the Court said of the mention of the ad damnum in a similar instruction that it "could only have been understood as marking a limit beyond which the jury could not go."

Washington & Georgetown R. Co. v. Hickey, 5 App.D.C. 436, affirmed 166 U.S. 521, 17 S.Ct. 661, 41 L.Ed. 1101, and District of Columbia v. Duryee, 29 App.D.C. 327, lend further support to the proposition that if the jury is correctly instructed as to the measure of damages, mention of the ad damnum as a limitation on recovery is not improper.

It is true that, at the time these cases were decided, it was the practice in District of Columbia courts to have the jury take the pleadings into the jury room with it. Under those circumstances, it might be argued, no harm was done in mentioning the ad damnum to the jury. But language in Melton v. Capital Transit Co., 102 U.S. App.D.C. 306, 253 F.2d 42, indicates that, while the earlier practice is no longer customary, the McDermott, Hickey and Duryee decisions are still good authority. The court in the Melton case implied that the jury could be told of the ad clamnum, for it said: "We would suppose that upon request, the plaintiff should be entitled to receive an instruction that the jury * * * may award damages in such amount as it shall find the plaintiff is entitled to receive up to the amount claimed in the action." [Emphasis supplied.]

The charge of the trial court in the present case emphasized that the ad damnum was a ceiling only, and that the jury was to fix damages with reference not to the sum claimed but to that amount justified by the evidence. Taken as a whole, the instruction is similar to those approved by the Supreme Court in McDermott v. Severe, Chesapeake & Ohio R. Co. v. Carnahan, and Norfolk & W. Ry. Co. v. Earnest, su...