Harper v. Bolton , 239 S.C. 541 ( 1962 )

Moss, Justice.

Theresa Harper, the respondent herein, instituted this action against Pattie Vaughan Bolton, the appellant herein, and M. T. Bolton, and Isaac Harris, Jr., to recover damages for personal injuries suffered by her in an automobile accident which occurred on November 21, 1958, when the automobile operated by the appellant, and in which the respondent was riding as a passenger, was in collision with an automobile operated by Isaac Harris, Jr. It appears from the record that the said Harris defaulted, and M. T. Bolton was eliminated from the case by a directed verdict.

The case was tried before the Honorable James Hugh McFaddin, and a jury, at the 1959 November Term of the Court of Common Pleas for Richland County, South Carolina, and resulted in a verdict for actual damages in favor of the respondent. At appropriate stages of the trial the appellant made motions for a nonsuit and a directed verdict in her favor. These were refused. After the rendition of a verdict in favor of the respondent, the appellant made motions for judgment non obstante veredicto, and in the alternative, for a new trial. Both of said motions were refused by the trial Judge. The appellant does not appeal from the refusal of her motions for a nonsuit, directed verdict and judgment non obstante veredicto, but does appeal from the trial Judge’s refusal of her motion for a new trial and from the judgment entered on the verdict of the jury.

It is conclusive from the evidence that the respondent suffered an injury to her left eye, necessitating its removal. The eye so removed was preserved in alcohol, and upon the trial of the case, over the objection of the appellant, the glass vial containing said eye was offered in evidence.

It further appears that one of the attorneys for the respondent, while addressing the jury, and over the objection of the appellant, “was permitted to endorse on a blackboard his own opinion as to the per diem value of pain and suffering.”

The first question for determination is whether the trial Judge committed error in admitting in evidence, over the objection of the appellant, the glass vial containing the removed and preserved eye of the respondent. In this connection the appellant asserts that there was no question under the evidence but, that the eye of the respondent was lost as a result of her injury. It is further contended that it was not necessary to admit the removed eye in evidence for the purpose of proving a disputed fact in the case. The record shows that the surgeon who removed the eye of the respondent was sworn as a witness. He testified that because of the severe nature of the injury to the eye of the respondent it was necessary to remove it. This witness produced a small glass vial containing the removed eye of the respondent and upon the offer of such vial in evidence, counsel for the appellant stated, “I don’t know of its relevancy, your Honor. There is no question but that the eye was removed.” The attention of the court was then directed to the answer of the appellant which alleged that the respondent received some injury in the accident but there was a denial of the nature and the extent of said injury. To this argument, counsel for the appellant replied, “Well, I think they have established that, your Honor. The doctor just testified to it. There has been testimony here that the eye was removed.” Thereupon, the trial Judge asked counsel for the appellant if he admitted that the eye was removed, and the reply was, “From what the doctor has said, I don’t think there can be any doubt about it”, and, “If the doctor testified to that, I do admit it.”

We think no other conclusion can be reached than that counsel for the appellant unqualifiedly admitted that the eye of the respondent had been necessarily removed because of the injury to such eye. In the course of the discussion as to the admissibility of the removed eye, counsel for the appellant three times said that there was no question but that the eye had been removed.

Evidence is offered for the purpose of proving the existence or nonexistence of some matter of fact. Wé so held in State v. Heavener, 146 S. C. 138, 143 S. E. 674. It would have been proper to admit into evidence the removed eye of the respondent if such had been made for the purpose of proving some disputed or controverted fact in issue. Here, there was no issue as to the removal of respondent’s eye.

In the case of Johnston v. Selfe, 190 Minn. 269, 251 N. W. 525, it was held that it was not error to admit in evidence fragments of bone from the plaintiff’s skull, where there was a controversy as to the character of the injury to the head.

In the case of Nebonne v. Concord R. R., 68 N. H. 296, 44 A. 521, the toes of the plaintiff necessarily amputated in consequence of an accident were exhibited to a jury, over the objection of the defendant. The court held that the exhibition of the amputated toes to the jury was proper under the facts, but if the offer to exhibit the toes was not made for the purpose of proving some disputed fact material to the issue, the exhibition should not have been allowed.

In the case of Evans v. Chicago, M. & St. P. R. Co., 133 Minn. 293, 158 N. W. 335, the court held that where the amputated hand of the plaintiff, which had been preserved, was offered in evidence for the purpose of showing damages and pain and suffering, and upon no other issue, the court did not err in excluding it.

In Rost v. Brooklyn Heights R. Co., 10 App. Div. 477, 41 N. Y. S. 1069, where a small child’s foot had been run over by an electric car, the display of the amputated foot to show the size of the child at the time of the injury was held error, the child being present at the trial, and the defendant admitting that the foot had been amputated. The court conceded that it is the undoubted rule that the exhibition of an injury or an injured member of the body to the jury is proper where it is the subject of examination, if such exhibition is necessary to enable the jury to understand the circumstances surrounding the injury, or to obtain a more comprehensive and intelligent conception of the conditions which existed when the injury was received, or of the character of the injury itself, but stated that where such exhibition is not essential or necessary to enable the jury to better understand the conditions, or where the jury may be led to illegitimate considerations on account of it, then it may become improper. We quote the following from this case:

“It is perfectly clear in the present case that the direct tendency of the exhibition of this mangled foot, coupled with the other considerations already noted, was to arouse the prejudice and inflame the passions of the jury into an angry resentment against the author of the misfortune. This condition far overbalanced any legitimate purpose for which the exhibit might have been made, and made the exhibition of this foot, under the circumstances of this case, improper.”

The exhibition of injuries should not be permitted where such will not tend to throw any light on any issue in the case nor should an exhibition be permitted where it is apparently designed merely to excite pity and commiseration. 32 C. J. S., Evidence, § 610, at page 461. See also the annotation in 66 A. L. R. (2d), at page 1367, which cites a number of cases as to the propriety of permitting a plaintiff in a personal injury action to exhibit amputated limbs or other separated parts of the body to the jury.

The exhibition of the enucleated eye of the respondent did not tend to throw any light on any issue in this case. We think the trial Judge committed error in permitting the introduction of the removed and preserved eye.

The only other question for determination is whether the trial Judge committed error in permitting one of the attorneys for the respondent, while addressing the jury and over the objection of the appellant, to endorse on a blackboard his own opinion as to the per diem value which the jury should award to the respondent for her pain and suffering.

The question here involved does not relate to the propriety of counsel’s use of a blackboard, during his argument to the jury, for the purpose of fairly illustrating points that are properly arguable, or bringing to the attention of the jury, facts or figures properly revealed by the evidence. In the case of Johnson v. Charleston & W. C. Ry. Co., 234 S. C. 448, 108 S. E. (2d) 777, we said:

“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, § 177; Lauderdale County Cooperative v. Lansdell, 263 Ala. 557, 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.”

Pain and suffering is recognized by the Courts of this State as a very material element of damages on which a recovery may be bottomed. Campbell v. Hall et al., 210 S. C. 423, 43 S. E. (2d) 129. Damages for pain and suffering are unliquidated and indeterminate in character and the assessment of unliquidated damages must rest in the sound discretion of the jury, controlled by the discretionary power of the trial Judge. Wright v. Gilbert et al., 227 S. C. 334, 88 S. E. (2d) 72. Pain and suffering have no market price. They are not capable of being exactly and accurately determined, and there is no fixed rule or standard whereby damages for them can be measured. Hence, the amount of damages to be awarded for pain and suffering must be left to the judgment of the jury, subject only to correction by the courts for abuse.

It is an admitted fact in this case that one of the attorneys for the respondent was permitted to endorse on a blackboard his own personal opinion as to the per diem value of pain and suffering. There was no evidence in the record to support the attorney’s opinion as to the per diem value thereof.

There is no uniformity in the decisions of the different courts as to whether the permitting of the mathematical formula argument constitutes error. The appellant asserts that it does and calls our attention to an annotation in 60 A. L. R. (2d), at page 1347, from which it appears that in a number of jurisdictions the courts refused to permit counsel, in personal injury suits, to suggest monetary mathematical formulas to the jury for the computation of compensation for pain and suffering. These courts say that such suggestions have no foundation in the evidence, and import into the trial elements of sheer speculation on a matter which by universal understánding is not susceptible of evaluation on any such basis and constitute an unwarranted intrusion into the domain of the jury. Indemnity Insurance Company of North America v. Odom, 237 S. C. 167, 116 S. E. (2d) 22.

The case of Certified T. V. and Appliance Co. v. Harrington, 201 Va. 109, 109 S. E. (2d) 126, was an action for injuries sustained by the plaintiff. In the trial there was objection made to the use by plaintiff’s counsel of a mathematical formula for measuring and awarding damages for pain and suffering, mental anguish and percentage of disability on a per diem basis. In reversing the decision of the lower court, the Virginia court said:

“It has been repeatedly held in Virginia and in other jurisdictions that there is no fixed rule or yardstick by which to measure with mathematical precision the definite amount of damages for physical pain, suffering and mental anguish endured in personal injury cases. It is within the sound discretion of the jury to determine from the evidence what is fair and reasonable compensation, and a verdict of the jury will not be disturbed unless it appears that it was influenced by partiality, prejudice, corruption of the jury, or by some mistaken view of the evidence. Lilley v. Simmons, 200 Va. 791, 108 S. E. (2d) 245; Williams Paving Co., Inc. v. Kreidl, 200 Va. 196, 204, 104 S. E. (2d) 758, 764; National Fruit Product Co., Inc. v. Wagner, 185 Va. 38, 40, 37 S. E. (2d) 757, 758; Simmons v. Boyd, 199 Va. 806, 811, 102 S. E. (2d) 292, 295; 5 Mich. Jur., Damages, § 30, p. 520; 25 C. J. S., Damages, § 196, p. 910; 15 Am. Jur., Damages, § 71, p. 479.

“To permit plaintiff’s counsel to suggest and argue to the jury an amount to be allowed for pain, suffering, mental anguish and disability calculated on a daily or other fixed basis, allows him to invade the province of the jury and to get before it what does not appear in the evidence. Since an expert witness would not be permitted to testify as to the market value of pain and suffering, which differs in individuals and the degree thereof may vary from day to day, certainly there is all the more reason for counsel not to do so. The estimates of counsel may tend to instill in the minds of the jurors impressions not founded on the evidence. Verdicts should be based on deductions drawn by the jury from the evidence presented and not the mere adoption of calculations submitted by counsel.

“We are of opinion that the use by plaintiff’s counsel of a mathematical formula setting forth on a blackboard the claim of pain, suffering, mental anguish, and the percentage of disability suggested by him on a per diem or other fixed basis, was speculation of counsel unsupported by evidence, amounting to his giving testimony in his summation argument, and that it was improper and constituted error. Henne v. Balick, Del. 1958, [1 Storey 369, 51 Del. 369] 146 A. (2d) 394, 398; Botta v. Brunner, 1958, 26 N. J. 82, 138 A. (2d) 713, 60 A. L. R. (2d) 1331, 1334, 1345, 1346; Herb v. Hallowell, 304 Pa. 128, 154 A. 582, 85 A. L. R. 1004; Vaughan v. Magee, 3 Cir., 218 F. 630; Goodhart v. Pennsylvania R. Co., 177 Pa. 1, 35 A. 191.”

There are other cases supporting the holding in the Certified T. V. and Appliance Company case. King v. Railway Express Agency, Inc., N. D., 107 N. W. (2d) 509; Affett v. Milwaukee & Suburban Transport Corp., 11 Wis. (2d) 604, 106 N. W. (2d) 274; Faught v. Washam, Mo., 329 S. W. (2d) 588, and Crum v. Ward, W. Va., 122 S. E. (2d) 18. We quote the following from the last cited case:

“In our view, the mathematical formula argument is based wholly on speculation, or imaginary inferences, not supported by facts, in reality by supposed facts which could not be received in evidence if offered. No effort, perhaps, would succeed in pointing out the almost innumerable variables necessarily existing or involved in such speculation. For illustration, however, it may be suggested that any attempt to place a money value on pain for any definite unit of time is impossible of any sound basis, for no two persons, it is believed, bear the same sensitivity to pain. The severity or duration of pain, though resulting from the same cause, varies as to different individuals so greatly that the most experienced and learned physician finds no method of measuring it, but, to a very large extent, must rely on representations of the patient. * * *”

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.

We think the doctrine announced in the Certified T. V. and Appliance Company case, supra, is sound and we adhere thereto.

Hence, we conclude that it was error for the trial judge to permit counsel for the respondent to endorse on a blackboard his own personal opinion as to the per diem value of pain and suffering.

The judgment of the lower court is reversed and this case remanded for a new trial.

Taylor, C. J., and Oxner, J., concur, and Lewis, J., concurs in result. Bussey, J., dissents.