Reid v. Baumgardner, 760368
| Citation | 232 S.E.2d 778,217 Va. 769 |
| Decision Date | 04 March 1977 |
| Docket Number | No. 760368,760368 |
| Parties | Philip B. REID v. Margaret Hicks BAUMGARDNER. Record |
| Court | Supreme Court of Virginia |
Jerry K. Jebo, Radford (John C. Sheldon, Dalton & Jebo, Radford, on briefs), for plaintiff in error.
James L. Gleaves, Jr., Whytheville, Kenneth I. Devore, Christiansburg (Gleaves, Boyd & Kaase, Whytheville, Devore & Grubbs, Christiansburg, on brief), for defendant in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
Margaret Hicks Baumgardner, as plaintiff, filed a motion for judgment in the trial court against Philip B. Reid, defendant, for personal injuries sustained in an automobile accident which occurred in the Town of Christiansburg on June 28, 1973. Reid admitted liability and, pursuant to the provisions of Code § 8--237 (Repl. Vol. 1957), paid into court the sum of $2,715.50. A jury trial limited to the question of damages resulted in a verdict for the plaintiff in the amount of $25,000, in addition to the sum deposited. The trial court, overruling the defendant's motion to set aside the verdict, on March 16, 1976, entered final judgment thereon for $27,715.50. On appeal Reid contends that improper argument to the jury by counsel for Mrs. Baumgardner requires reversal of the judgment and remand of the case for a new trial.
There is no conflict in the evidence. The automobile operated by Mrs. Baumgardner was stopped in traffic when it was struck in the rear by Reid's vehicle and propelled forward into a car stopped in front of hers. Mrs. Baumgardner received what is commonly known as a whiplash injury to her neck and shoulders. She was treated first in the emergency room of the local hospital and later by her family physician. She wore a cervical collar for six or eight weeks and subsequently used a cervical traction apparatus prescribed by an orthopedic specialist to whom she had been referred. Although Mrs. Baumgardner, a high school teacher, lost no income because of the accident, she testified that she continued to suffer pain and stiffness. The medical evidence was that Mrs. Baumgardner would have some permanent residual stiffness. Her total medical expenses attributable to the accident were $215.50, plus an additional bill for $25 discovered during the trial. There were no other special damages.
In his opening statement counsel for Reid, without objection, informed the jury that Reid's liability was conceded and that he felt that the payment into court of the medical expenses of $215.50, plus $2,500 for pain and suffering, was 'a reasonable offer' for Mrs. Baumgardner's damages.
Mrs. Baumgardner's life expectancy of 28.7 years was set forth in an instruction given to the jury. There is no controversy over this or any other instruction.
In closing argument Reid's counsel again referred to the medical expenses, which he requested the jury to increase to $240.50 because of the additional $25 medical bill. He continued as follows:
'That's not very much. Now that's not the only indication of what her injury is worth. But that definitely is one indication. We have paid into court in addition to those medical bills a total of twenty-five hundred dollars ($2500.00)--ten times what her medical bills are.
Now in assessing this case, we've, of course had the deposition of Dr. Bray to read over. We've had other evidence we've ascertained. And that's what we felt was a fairly reasonable sum--twenty-five hundred additional dollars.'
In final argument for the plaintiff, her counsel made this statement:
Reid's counsel interposed, 'I object, Your Honor', to which the trial court replied, 'Overruled'. Closing argument for the plaintiff continued to its conclusion without further interruption.
After the jury retired to consider its verdict Reid's counsel made the following statement:
'Your Honor, we highly object to the terms used by the Plaintiff's attorney when he said
The trial court replied, 'I'll overrule your motion'.
After the jury returned a verdict for the plaintiff for $25,000 in addition to the $2,715.50 paid into court, Reid's counsel made this motion:
The trial court responded, .
There can be little doubt as to the impropriety of the argument of plaintiff's counsel. In Appliance Company v. Harrington, 201 Va. 109, 114--15, 109 S.E.2d 126, 130--31 (1959), we held that it was impermissible for counsel to argue to the jury an amount for pain, suffering, mental anguish, and disability calculated on a daily or other fixed basis. Verdicts must be based upon the evidence in the case rather than the speculative calculations of counsel. The contention of Mrs. Baumgardner that the statement in question was merely a suggestion for purposes of illustration is without merit. The statement was necessarily suggestive, and was intended to be so, as the purpose of any argument to a jury is to influence the jury in favor of the advocate's position. But, as there was no evidence to support the figure of $1,000 per year, the fixed-formula argument was manifestly improper. The question remains whether Reid preserved his right to complain.
Relying on MacGregor v. Bradshaw, 193 Va. 787, 71 S.E.2d 361 (1952), Mrs. Baumgardner maintains that the argument of her counsel was provoked and invited by argument of Reid's counsel, so that Reid may not be heard to complain. We reject this contention. Reid's counsel did state that the sum of $2,715.50 had been paid into court and argued that this was a reasonable figure for damages. However, the trial court instructed the jury in Instruction E that Reid had paid that amount into court, that if the jury believed that this was reasonable compensation for the plaintiff, it should find a verdict for the defendant, and if the jury did not believe that the sum deposited was a reasonable figure it should find for the plaintiff in an additional amount. Furthermore, the amount of the medical expenses was in evidence. Reid's counsel had the right to argue from the instructions and from the evidence, and in doing so, he did not invite the improper argument of opposing counsel.
Mrs. Baumgardner next argues that Reid's counsel failed to state with reasonable certainty the ground for his objection to the argument in controversy, and that under the provisions of Rule 5:7 (now Rule 5:21), in effect at the time of trial, we should not now notice the objection. The purpose of the requirement of specificity is to give the trial court an opportunity to rule intelligently and avoid unnecessary appeals, reversals, and mistrials. Woodson v. Commonwealth, 211 Va. 285, 288, 176 S.E.2d 818, 820 (1970). However, in the present case the trial court, while peremptorily overruling the...
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