Plаintiffs, Willie and Lois Beasley, appeal as of right from a September 5, 1986, order denying their motion for a new trial. We reverse and remand for a new trial. c
Mr. Beasley (plaintiff) testified that, on September 8, 1981, between 5:00 and 6:00 p.m., he was driving his 1965 Chevrolet van west on Six Mile Road. At the intersection of Six Mile and Wildemere, in the City of Detroit, his vehicle collided with the 1979 Eldorado driven by defendant. Defendant left the scene of the accident to take her five-year-old son to the hospital.
Plaintiff remained on the scene and told the police officers about the accident. After the acci *653 dent, plaintiff refused medical treatment. Plaintiff stated that, although his head hurt and was throbbing and he had a bump on his head, he refused to see a doctor despite being urged by his family to do so. In fact, plaintiff went to work the following day, working the afternoon shift from 3:30 to 11:30 p.m. When he got off work, he tried to catch a bus hоme. Plaintiff waited thirty to forty-five minutes for a bus. No bus came. Subsequently, he walked home from the bus stop.
Two days after this accident, on September 10, 1981, plaintiff rode his daughter’s bicycle to work, a distance of over ten miles. Plaintiff worked the afternoon shift and rode the bicycle back home. During the return triр, plaintiff had a second accident at the intersection of Greenfield and Glendale Roads. He stated that he rode the bicycle to the top of the hill near the intersection and apparently blacked out. He did not remember anything about the second accident. He just recalled waking up at the hospital.
The driver of the vehicle involved in the second accident, Thomas Ledbetter, testified as to how this particular accident took place. Ledbetter stated that, while he was stopped at the "Stop” sign at the intersection of Greenfield and Glendаle, plaintiff’s bicycle ran into his vehicle. Plaintiff was flung across the front hood of the truck, landing on the road. Ledbetter did not see plaintiff until the impact.
After the second accident, plaintiff was taken to Mount Carmel Mercy Hospital. Plaintiff was examined by Dr. Blaise U. Audet. X-rays were taken and they revеaled that plaintiff had suffered multiple linear skull fractures. Plaintiff was admitted into the hospital.
While in the hospital, plaintiff complained of nausea, vomiting and headaches. A cat scan was *654 ordered. The cat scan results showed that plaintiff had an epidural hematoma (blood clot) bеtween the skull and the surface of the brain. In order to alleviate this condition, plaintiff underwent a right frontal craniotomy, surgery to evacuate the hematoma to relieve pressure to the brain. The surgery left plaintiff with a scar on his right front scalp area. For nearly one year, plaintiff shоwed an abnormal eeg (electroencephalogram) indicating "brain suffering.”
Following the presentation of plaintiffs’ proofs, defendant moved for a directed verdict. Defendant alleged that the plaintiffs had not met their burden by establishing the threshold for recovery under the no-fault act, MCL 500.3135; MSA 24.13135, which requires plaintiffs to show a serious impairment of body function or permanent serious disfigurement. The trial court took defendant’s motion under advisement and told defense counsel to proceed with defendant’s case.
In closing argument, plaintiffs maintained that defendant was negligent and that this negligence proximately caused plaintiff’s injuries. Plaintiffs alleged that, even if the second accident contributed to plaintiff’s injuries, the injuries were "individable” so that the jury was duty bound to find the first accident to be the cause of all of the injuries. Plaintiffs sought damages totalling $204,000.
Defendant argued that she was not negligеnt. Further, defendant alleged that, even if she had been negligent, plaintiff’s injuries were caused solely from the second accident. Additionally, defendant asserted that plaintiffs had failed to establish the threshold requirement for recovery under the no-fault act.
The jury reached its verdict on a special verdict form. The jury found that plaintiff had not suf *655 fered a serious impairment of body function or permanent disfigurement. Nevertheless, the jury proceeded to award plaintiffs $40,000 in damages. The trial court accepted the verdict, interpreting it as a determination of no cause of action. Subsequently, on January 31, 1986, the trial court reconvened to rule on defendant’s directed verdict motion. After hearing argument, the court granted the motion.
Plaintiffs moved for a new trial. The trial court denied their motion on September 5, 1986. The instant appeal followed.
First, plaintiffs argue that the trial сourt erred by denying their motion for a new trial on the basis that the trial court clearly recognized that the jury had reached an inconsistent verdict and yet did not resubmit the case to the jury with further instructions. We agree.
It is within a trial court’s sound discretion to grant or deny a motion for new trial.
Murphy v Muskegon Co,
After the jury finished with their deliberations, they returned the following verdict on the prepared special verdict form:
FORM OF VERDICT
We, the jury, make the following answers to the question submitted by the Court.
1. Was the Defendant negligent? Yes x No_
2. Was the Defendant’s negligence a рroximate cause of an injury to the plaintiff?
*656 Yes x No_
If you answer "No,” do not answer any further questions.
3. Did the injury which Plaintiff suffered result in permanent serious disfigurement or serious impairment of body function? Yes_No x_
If your answer is "No,” do not answer any further questions.
4. What is the total amount of Plaintiff’s damages? $40,000
5. Was the Plaintiff negligence [sic]? Yes x No_
If your answer is "No,” do not answer any further questions.
6. Was the Plaintiff’s negligence a proximate cause of injury to the Plaintiff? Yes x No_
If your answer is "No,” do not answer any further questions.
7. Using 100% as the total combined negligence which approximately [sic] caused the injury to the Plaintiff, what percentage of such negligence is attributable to the Plaintiff? 49%
Please note that the Court will reduce the total amount of Plaintiff’s damages entered in question number 4 by the percentage of negligence attributable to Plaintiff, if any, entered in question number 7. The remainder will be the amount which Plaintiff is entitled to recover.
*657 8. What is the total amount of Mrs. Beasley’s damages? -0-
The no-fault act requires a plaintiff to establish a threshold of death, serious impairment of body function, or permanent serious disfigurement before recovery is permitted, MCL 500.3135; MSA 24.13155 . As the verdict form indicates, the jury found that plaintiffs had not established the threshold for recovery. Yet, despite the fact that the jury found no serious impairment of body function or permanent serious disfigurement, the jury proceeded to award dаmages.
The trial judge recognized the inconsistent nature of the verdict but he did not resubmit the case to the jury with further instructions. Instead, he accepted the verdict and interpreted it as a determination by the jury that plaintiffs had no cause of action.
Initially, we must determine whether the jury verdict was incоnsistent. "[I]t is fundamental that every attempt must be made to harmonize a jury’s verdicts. Only where verdicts are so logically and legally inconsistent that they cannot be reconciled will they be set aside.”
Granger v Fruehauf Corp,
In
Harrington v Velat,
The trial judge in a civil case can correct a verdict which is defective or erroneous as to a mere matter of form not affecting the merits or rights of the parties so as to give effect to what the jury unmistakably found. 76 Am Jur 2d, Trial, § 1208.
However, the general rule is that where a ver *658 diet in a civil case is inconsistent and contradictory, it will be set aside and a new trial granted.
"Ordinarily, a verdiсt may and should be set aside and a new trial granted where it is self-contradictory, inconsistent, or incongruous, and such relief should, as a rule, be granted where more than one verdict are [sic] returned in the same action and they are inconsistent and irreconcilable.” 66 CJS, New Trial, § 66, pp 197-198.
In this casе, the jury found plaintiffs total damages to be $40,000 after finding plaintiff did not suffer injury resulting in permanent serious disfigurement or serious impairment of body function. In order to reconcile the verdict, one needs to assume either that the jury did not understand the threshold requirement under the no-fault act or that they erred in cоmpleting the form. We conclude that this verdict was inconsistent.
The proper remedy to correct a defective verdict is to either reinstruct the jury or order a new trial.
Farm Bureau Mutual Ins Co v Sears, Roebuck & Co,
In addition, the trial court erred in granting defendant’s directed verdict motion once the jury rendered its verdict. Although the court deemed this a directed verdict, procedurally speaking, the court essentially issued a judgment notwithstanding the verdict, as provided for in MCR 2.610. However, in Farm Bureau, supra, this Court noted that judgment notwithstanding the verdict is im *659 proper when the trial court is faced with an inconsistent verdict.
However, had the trial court granted the directed verdict motion at the close of plaintiffs’ proofs, it would nonetheless have been error. In reviewing a trial court’s denial of a motion for a directed verdict, we view the evidence in the light most favorable to the nonmoving party and determine whether a prima facie сase was established. If there were material issues of fact upon which reasonable minds could differ, they were properly admitted to the jury.
Hall v Citizens Ins Co of America,
In
DiFranco v Pickard,
In this case, there was a material factual dispute regarding whether plaintiffs epidural hematoma and linear skull fraсtures were as a result of the first or second accident. More importantly, however, the central dispute at trial was whether these injuries constituted a serious impairment of body function or a permanent serious disfigurement. Therefore, the trial court’s grant of defendant’s directed verdict mоtion was erroneous.
Thirdly, plaintiffs argue that it was error to provide the jury with a copy of the police report describing the first accident since it had not been received into evidence. We agree.
In
Eley v Turner,
In this case, we find that plaintiffs were substantially prejudiced by submission of the police report to the jury especially since it had not been properly admitted into evidence. Plaintiffs’ counsel was not afforded an opportunity to question the factual conclusions on the report. The jury’s determination that plaintiff was forty-nine percent negligent was probably аffected by the notation on the report showing that plaintiff was assessed a hazardous action number and that plaintiff’s van left forty feet of skid marks. Thus, a new trial is warranted.
Finally, plaintiffs claim that it was error to instruct the jury to consider plaintiff’s comparative negligence with respect to accident two since a settlement had been reached in that case. Defendant claims that it was proper for the jury to consider plaintiff’s comparative negligence in accident number two since plaintiffs argued that the injuries sustained in the second accident were indivisible from the injuries in the first accident.
In
Esparza v Horn Machinery Co,
However, we conclude that it was error to instruct the jury to reduce the damage award by plaintiffs comparative negligence in accident number two since the instruction was confusing. Although instructing the jury to reducе the damage award at one point, the trial court also instructed the jury not to concern itself with reduction of the damage award from accident number two.
Although there is no case law directly on point, the discussion, in part, in
Rittenhouse v Erhart,
The dissent interprets the instruction "[u]sing 100 percent as the total combined negligence which proximately caused the injury or damage to the plaintiff’ to mean that the jury considered plaintiffs comparative fault in respect to all tortfeasors, whether present at trial or not. In Mayhew, supra, where the nonsettling defendant was seeking to apportion fault to a sеttling tortfeasor, we said:
"[N]umerous difficulties would be presented if we were to allow the jury to apportion damages among all tortfeasors, including a settling non-party. It would mean that the settling tortfeasor’s liability would be assessed without anyone adequately representing that interest. It would put the рlaintiff in a unique trial situation. The plaintiff would not only have to advocate that he was not at fault, he would have to convince the jury that the non-party was only minimally at fault. Otherwise, there might be too great a percentage of fault attributed to the non-party, thus reducing the plaintiffs recovery.”414 Mich 412 .
If as we said in Mayhew, it would be difficult for the plaintiff to try to defend against the relative fault of a nonparty defendant, how, indeed can we expect the plaintiff in this situation to defend *662 against his contributory negligence vis-á-vis non-party defendants. If the instructional reference to "total combined negligence” was interpreted to include the negligence of nonparty tortfeasors, it would be left to the plaintiff and defendant to argue the relative negligence of the nonparty tortfeasors, notwithstanding the "numerous difficulties” alluded to in Mayhew.
We note that in
Rittenhouse, supra,
and
Mayhew v Berrien Co Rd Comm,
Reversed.