Norval Smith v. Thomas Brady & Holt, Rinehart & Winston, Inc., 390 F.2d 176 (4th Cir. 1968). · Go Syfert
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Norval Smith v. Thomas Brady & Holt, Rinehart & Winston, Inc., 390 F.2d 176 (4th Cir. 1968). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, 2002–2024 · 3 courts · …the propriety of the verdict is tested by the evidence, not the ad damnum clause. at p. 177 ✓
11 citation events (5 in the last 25 years) across 6 distinct courts.
Top citers, strongest first. 7 distinct citers. How cited ↗
cited Cited as authority (rule) Roemen v. United States
D.S.D. · 2024 · confidence medium
Va. 2002) (citing Smith v. Brady, 390 F.2d 176, 177 (4th Cir. 1968)) (“The propriety of the verdict is tested by the evidence, not the ad damnum clause.”); Gilbane Bldg.
discussed Cited as authority (rule) Seiden v. Omni Hotels Management Corporation
W.D. Va. · 2021 · confidence medium
P. 54(c) (providing that except for default judgments, all final judgments “should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings”). “[T]his is a matter of federal procedure, even in a diversity case,” Dotson, 218 F. Supp. 2d at 816 (citing Riggs, Ferris & Geer v. Lillibridge, 316 F.2d 60, 62 (2d Cir. 1963)), and it means that an ad damnum clause “serves no practical purpose in a contested case, since ‘[t]he propriety of the verdict is tested by the evidence, not the ad damnum clause,’” id. (quoting Smith v. Bra…
discussed Cited as authority (rule) Douglas v. McCarty (2×) also: Cited "see"
4th Cir. · 2003 · confidence medium
In Smith , we stated that “[t]he propriety of the verdict is tested by the evidence, not the ad damnum clause.” 390 F.2d at 177 (emphasis in original).
cited Cited as authority (rule) Dotson v. Ford Motor Co.
W.D. Va. · 2002 · confidence medium
It serves no practical purpose in a contested case, since “[t]he propriety of the verdict is tested by the evidence, not the ad damnum clause.” Smith v. Brady, 390 F.2d 176, 177 (4th Cir.1968).
discussed Cited as authority (rule) Pugliese v. Golden Investment
1st Cir. · 1993 · confidence medium
Co., 936 F.2d 1364 , 1384 ______________________ _________________ (1st Cir. 1991) (jury charge to be viewed "as a whole"). 18 also, e.g., Smith v. Brady, 390 F.2d 176, 177 (4th Cir. 1968) ____ ____ _____ _____ (jury instruction on damages which had no effect on verdict held "harmless").
discussed Cited "see, e.g." Chroniak v. Golden Investment Corp.
1st Cir. · 1993 · signal: see also · confidence medium
Davet v. Maccarone, 973 F.2d 22, 26 (1st Cir.1992) (“harmless error” standard of review applicable to jury instruction challenge); see also, e.g., Smith v. Brady, 390 F.2d 176, 177 (4th Cir.1968) (jury instruction on damages which had no effect on verdict held “harmless”).
discussed Cited "see, e.g." Pauline Chroniak and Thomas Pugliese v. Golden Investment Corp. And Armand Roberts, Thomas Pugliese v. Golden Investment Corp. And Armand Roberts, Thomas Pugliese v. Golden Investment Corp. And Armand Roberts, (Two Cases)
1st Cir. · 1993 · signal: see also · confidence medium
Davet v. Maccarone, 973 F.2d 22, 26 (1st Cir.1992) ("harmless error" standard of review applicable to jury instruction challenge); see also, e.g., Smith v. Brady, 390 F.2d 176, 177 (4th Cir.1968) (jury instruction on damages which had no effect on verdict held "harmless"). 39 The gratuitous instruction on willfulness conceivably could have had relevance to two statutory provisions, SMHLA, section 7-a, and CPA, section 10, neither of which was read to the jury.
Retrieving the full opinion text from the archive…
Norval SMITH, Appellee,
v.
Thomas BRADY and Holt, Rinehart & Winston, Inc., Appellants
11450_1.
Court of Appeals for the Fourth Circuit.
Jan 12, 1968.
390 F.2d 176
Lester C. Hess, Jr., and John B. Garden, Wheeling, W. Va., for appellants., Thomas R. Ceraso, Greensburg, Pa., (Scales & Shaw, Greensburg, Pa., and Ronald W. Kasserman, Wheeling, W. Va., on the brief) for appellee.
Butzner, Craven, Haynsworth, Per Curiam.
Cited by 10 opinions  |  Published
PER CURIAM:

The defendants in this action for personal injuries seek to vacate a judgment of $22,500 on grounds that it is excessive and the result of prejudicial references by the trial judge to the ad damnum clause of the complaint. They challenge these portions of the charge which followed proper explanation of the measure and elements of the plaintiff’s damages:

“ * * * (The jury may) allow such damages as * * * will be a fair and just compensation for the injury which the plaintiff has sustained, not to exceed the sum of one hundred thousand dollars, the amount claimed in plaintiff’s complaint.
“The allegation of damages is not evidence, of course, but merely the extent of the plaintiff’s claim, and must not be considered by you as evidence.
“The allegations of the complaint as to the amount of damages * * * are not to be considered by you * * * except in this one respect, that the amount * * * claimed * * * does fix a maximum limit, and you are not permitted to award the plaintiff more than that amount.”

The instructions are not a correct statement of law. The amount of the plaintiff’s claim bears no relation to the verdict. The propriety of the verdict is tested by the evidence, not the ad damnum clause. Fed.R.Civ.P. 54(e); Riggs, Ferris & Geer v. Lillibridge, 316 F.2d 60 (2d Cir. 1963); Barron and Holtzoff, 3 Federal Practice and Procedure, § 1194, p. 38 (Wright ed. 1958).

Additionally, the instructions are misleading. They may leave the erroneous impression the court has ruled that any verdict not exceeding the plaintiff’s claim is proper. See Williams v. Nichols, 266 F.2d 389, 390, 393 (4th Cir. 1959). It is sufficient for the court to explain to the jury the correct measure of the plaintiff’s damages and the elements they should consider in reaching their verdict.

In this case we find the evidence supports the amount of the verdict. Un[*178] der the circumstances the court’s reference to the ad damnum clause was not prejudicial. The judgment is

Affirmed.