This is the second appeal of this case and is taken by plaintiff. First appeal was by defendаnt. Judgment for plaintiff was reversed January 9,1961, on a question not involved in the present appeal; a new trial was ordered.
Garrigan
v.
LaSalle Coca-Cola Bottling Co.,
In this appeal, plaintiff seeks reversal on several grounds and asks for partial new trial on the issue of damages only. His essential complaint is that the verdict was grossly inadequate. We deem it sufficient for proper disposition of this appeal tо discuss 1 question only, and this question has to do with significant omissions from the record of part of the foreman’s rendition of the jury verdict.
It is conceded by all that what appears in the transcript certified by the official court reporter does *487 not fully reflect what transpired at the time of vеrdict rendition. The following is what appears of record:
“The Clerk: What is your verdict?
“The Foreman: The jury has decided in favor of the plaintiff.
“The Clerk: In what amount, sir?
“The Foreman: And did you want me to give it itemized?
“The Court: No, I want you to give me the amount оf your verdict, if you have one.
“The Foreman: Well, the amount of $4,024.32.”
Plaintiff claims that the jury foreman stood up to give the verdict and bеgan to read an itemization of damages. Plaintiff says the foreman read the figure $2,824.32 for medical and other expense. Claim is made further that the foreman “started to give a second figure at which time the trial court asked him to give a total figure.” Plaintiff says apparently the foreman did nоt hear the court and continued reading a second item: loss of earnings in the amount of $1,200. On the other hand, defendant denies the claimed itemization, but concedes that the foreman “startеd to say something about $2,800.”
The trial judge’s recollection more closely approximates that of plaintiff. In the colloquy at the hearing on plaintiff’s motion to correct the record and for partial new trial, the record shows the following:
“The Court: Well, I want the record to show that the court considers that it has a very fine reporter and as far as I know he usually has a very accurate record.
“But I am inclined to think in this case that the foreman did say something that is not in the record. I heard it.
“Mr. Plunkett: Your Honor, I will admit he had a paper in his hand.
*488 “The Coitrb: 1 think he said ivhat Mr. Bruce has said he said.
“Mr. Plunkett: All of it, Your Honor? I don’t recall that. He started to say sоmething- then he looked up and he asked, ‘shall I itemize it?’ Your Honor said, ‘No.’
“The Court: I couldn’t be too sure as to the exact figures that he gave, because I can’t recall that. But I know—
“Mr. Plunkett: He started to say something.
“The Court: —he startеd itemizing it and I stopped him and I think that is ivhat accounts for our skip in the record here.
“Mr. Plunkett: I don’t think he mentioned any amount, Your Honor.
“The Court: Well, I am inclined to think that he did. * * *
“The Court: Well, as I say, I wouldn’t be able to swear as to amounts that he gave hut I am sure that he started giving an itemized account of the verdict.
“Mr. Bruce, I would be inclined to grant your motion to correct the record, but I don’t know what to correct it to. You say it is one figure. Counsel on the other side says there was no suсh figure mentioned. I don’t recall the figure. I remember there was some figure mentioned.” (Emphasis supplied.)
Thereafter, an order was entered correcting the record to show the following:
“The Foreman: (Reading from a paper in his hand) mentioned or started to mention some amount whiсh the court does not remember—
“The Court: (Breaking in on the foreman) Just a minute, we just want the total amount of the damages. Just a minute.”
This is an honest but inadequate (under the circumstances) substitute for the actual dialogue.
Therefore, it is the consensus of the Court, painful though it may be, that under the facts of this case, such significant and conceded оmissions are grounds
*489
for a new trial. This is our reasoning. As to liability, the jury found for plaintiff. Plaintiff claimed and itemizеd substantial damages. Instructions upon damages were given the court. Quite obviously, the foreman аttempted to itemize damages as apparently the jury had determined. That the foreman wаs unsuccessful in reporting the verdict by items, as intended, leaves the big question in this case unanswered. Did the jury follow instructions in arriving at the verdict? See
Fordon
v.
Bender,
As to plaintiff’s request for partial new trial as to damages, attention is directed to the statement in the recent case of
Bias
v.
Ausbury,
“While permitted by rule, we do not favor partial new trials, limited to damages alone. (See Kistler v. Wagoner,315 Mich 163 .)”
In Bias v. Ausbury, partial new trials as to damages were permitted beсause “under the peculiar facts” in that case the liability is clear. In this case, there is no such contention; therefore, a full retrial of all issues is indicated.
Reversed for new trial. Costs to plaintiff.