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Henne v. Balick

Supreme Court of Delaware

November 25, 1958

Donald HENNE et al., Defendants, Appellants,
v.
Sidney BALICK, Plaintiff, Appellee.

Page 395

 [51 Del. 371] Appeal from judgment of the Superior Court of New Castle County in an action for personal injuries.

William Prickett, Jr. and William Prickett, Sr., Wilmington, for appellants.

John M. Bader, of Balick & Bader, Wilmington, for appellee.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

BRAMHALL, Justice.

This appeal relates to an action for personal injuries in which plaintiff's counsel in his closing argument to the jury was permitted (1) to present plaintiff's claim for loss of earnings on a per diem basis without specific evidence to support it; and (2) to present, along with a blackboard demonstration thereof, plaintiff's claim for damages for pain and suffering on a per diem basis.

Plaintiff was injured in an automobile accident on November 25, 1955. At the trial it was shown that plaintiff sustained an injury to his back, a disfigurement, an impairment of the sense of smell and severe headaches. Substantial evidence was offered to the effect that all of these injuries were of a permanent nature. Plaintiff's counsel in his closing argument, in discussing the question of plaintiff's damages, used a blackboard demonstration to the jury, in which plaintiff's damages were set forth as follows:

   '38 years
   Hospital and Medical                                   613.54
   Loss of earnings                                       225.00
   Pain and suffering                                   2,500.00
   First 10 days
   Next 6 months at $25 per day                         4,500.00
   Loss of earning capacity 38 years at $10 per week  19,000.00'
   

[51 Del. 372] Defendants objected to the item for loss of future earnings on the ground that there was no evidence in the record from which the jury might have fixed a value for future earnings. Defendants also objected to the use on the blackboard and in the closing argument of plaintiff's counsel of the items set forth in the blackboard demonstration relating to pain and suffering, contending that it was improper to permit counsel for plaintiff to suggest to the jury for its consideration a specific sum per diem as damages for pain and suffering. The Court overruled defendants' objection as to both, instructing the jury that the above items were proper for their consideration. The jury brought in a verdict for plaintiff in the sum of $14,000. Defendants appeal.

We consider first the question of whether or not the Court erred in charging the

Page 396

jury that they could award damages for loss of future earnings.

As we understand defendants' objection, it is twofold: first, there was no evidence in the record relating to plaintiff's loss of earnings from which the jury might determine the amount of plaintiff's loss, and, secondly, assuming the existence of such evidence, it was necessarily so indefinite, so uncertain and so conjectural as to make the use by plaintiff's counsel on the blackboard and in his closing argument to the jury of a specific claim for loss of earnings highly improper.

Plaintiff says that defendants's argument assumes that the law requires direct and specific testimony that plaintiff was earning, or was capable of earning, a specific sum of money in a specified employment. Plaintiff further contends that in view of the substantial evidence offered by plaintiff as to permanent injuries, the effect of these ...


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