Moore v. Spangler

360 401 Mich 360 MOORE v SPANGLER 1) (Calendar 3, Argued May Docket No. 58081. No. . Decided 6, October 1977. brought damages arising injuries Moore Edna an action for from by when her car was struck from the rear a vehicle driven Spangler. Court, M. defendant Harold The 52nd District Chris- Brown, J., topher jury, objec- C. instructed over tion, emergency on the sudden doctrine. The returned a $1,344. plain- verdict for the of The trial court denied trial, tiffs motion for additur or a new and the Oakland Circuit Court, Roberts, J., plaintiffs appeal Farrell E. denied the hearing argument, requested by without oral which had been Holbrook, J., parties. Appeals, both The Court of D. E. P. Holbrook, Jr., JJ., appeal T. M. Burns and D. E. denied leave to 26741). (Docket appeals. No. Plaintiff Held: providing right appeal 1. Since the statute for the from any right district to circuit is silent court court as to to oral argument, statutory right argument there is no to oral in cases appeal Equal from district court to circuit court. The Protec- Michigan tion Clauses of the United States and Constitutions require uniformity procedure. do not It is a well settled rule right equal protection that the of the law is not denied procedure state law or course where the same law or course ^[12] [9] [10, ^{[1] [2] [5] [6] [4] [3] [8]} [7, 22 Am Jur 16 Am Jur 16 Am Jur 16 Am Jur 16 Am Jur 16 Am Jur 8] Court’s 213. 8 Am Jur either 1021, 1030. Damages 398. 11] Am 5 Am Jur 7 Am Jur Jur party’s power 2d, Appeal § 2d, 2d, 2d, 2d, 2d, 2d, 2d, References Automobiles and Damages Constitutional Law 584. Constitituonal Law 542. Constitutional Law 536. Constitutional Law 485 et Constitutional Law 546. 2d, refusal or to increase 2d, Appeal Automobiles and and Error 684. §§ for Points in Headnotes failure to consent to addition. ALR2d and Error § amount of verdict or 399. § Highways § § § § § Highway §§ seq. 1030, 1034, 965. 22 Am Jur Traffic judgment §§ 359, 360, over 2d, Moore procedure applied any person would have been other the same state under similar circumstances and conditions. In rights case the the instant has been afforded the same appeal any in her from district court to circuit court as other person would have been afforded under like circumstances. Plaintiff has not shown that invidious discrimination results classification, challenged penalizes from the that it the exercise right, of some fundamental or that it has no reasonable basis. ignores out-of-pocket 2. A verdict which uncontroverted ex- penses plaintiff inadequate on of a is its face and must be However, large trial courts have a measure of discre- reversed. granting tion in the matter of new trials and this court will not palpable. of that interfere unless the abuse discretion is The question appeal clearly is whether the verdict is so inadequate contrary great weight grossly and so to the of pertaining damages evidence sustained the as to judicial apparent In it shock the conscience. the instant case necessity or the that either the reasonableness of all of the plaintiff’s out-of-pocket expenses, exception with the of the paid emergency day $66.50 room treatment on the accident, question by placed in the cross-examination of was plaintiff’s testimony the witnesses and the of the defendant. Therefore, damages conclusively irrefutably were not and these established, judge did abuse his discretion in and the trial not denying motion for additur or in the alternative the a new trial. range testimony regarding was within the 3. The verdict plaintiff’s pain suffering inadequate and and was not so as the ignoring judicial conscience. Rather than the to shock the plaintiff’s pain suffering, and it seems obvious that the pain experience as much found that the did not suffering injuries as she from the she sustained in the accident claimed, proxi- negligence not the or that the defendant’s pain experi- suffering plaintiff did mate cause of the ence. sudden 4. The facts in the case at bar did not warrant accepting emergency Even defendant’s testi- instruction. mony pavement icy, was in fact such a condition January day Michigan. Nor was would not be unusual for a "unexpected” presented the situation which itself to defendant meaning emergency How- within the of the sudden doctrine. ever, liability issue in in the instant case resolved the plaintiff despite improper Plain- favor of the instruction. theory to reduce the tiff’s that the erroneous instruction tended damages overly speculative predicated on the awarded is 401 Mich 360 assumption that her "uncontrovert- erroneous were prejudiced by plaintiff was not the erroneous instruc- ed”. The therefore the trial court should not be reversed. tion and ground Justice Levin dissented on the it is not the prejudiced by plaintiff’s burden to show that she was erroneous instruction but the defendant’s burden to show that jurors’ may the error did not affect the result. The verdict have product compromise jurors to obtain the votes of been who, instruction, originally because of the erroneous intended being to vote for no cause of action. There no basis for conclud- result, plaintiff ing that the error did not affect the is entitled to a new trial.

Affirmed.

Opinion of the Court Appeal and Error —Constitutional Law —Due Process. part legal Appellate necessary system, is not a of a review required by process, right appeal due nor is the an inherent XIV). (US Const, right or inalienable Am Appeal Appeal Argu- 2. and Error — from District Court —Oral

ment. providing right appeal statute for the to from The district court (MCL provide right argument to circuit court does not a to oral 27A.8342). 600.8342; MSA Equal 3. Constitutional Protection —Procedure. Law — Equal Michigan The Protection Clauses of the United States and (US Const, require uniformity procedure Constitution do not of 2). XIV; 1963, 1, Am Const art § Equal 4. Constitutional Protection. Law — equality rights protected by Michigan The of the Constitution is preserved by the same as that the Fourteenth Amendment to (US Const, XIV; 1963, 1, the Federal Constitution Am Const art §2). Equal

5. Constitutional Protection. Law — right equal protection by The to of the law is not denied a state procedure law or course of where the same law or course procedure applied person any would have been to other in the (US same state under similar circumstances and conditions 2). Const, XIV; 1963, 1, Am Const art § Appeal Appeals Argu- 6. and Error — from District Court —Oral Equal Protection —Due Process. ment — argument appeal Refusal of a circuit court to allow oral on an to preclude appellant court circuit from district court not does an exercising appeal right from an effective in violation of the Equal appellant Protection Clause where not the has shown that invidious discrimination results from the classification of complains, penalizes which she that it the exercise of some (US right, fundamental or that it has no basis reasonable Const, 1963, 1, 2; 600.8342; Am XIV; Const § art MCL MSA 27A.8342). Damages Evidence—Verdict—Inadequacy—New 7. Trial. — ignores out-of-pocket A verdict which the uncontroverted expenses plaintiff inadequate is on its face and must be reversed; however, large trial a courts have measure discre- granting ground tion the matter trials on new the inadequate appellate the verdict is courts will not interfere (GCR 527). palpable unless abuse of discretion is Damages Evidence—Verdict—Inadequacy—Additur—New- 8. — Trial. question appellate considering The before an court a claim that a denying court trial erred in or motion additur in the alternative a new trial whether verdict was so clearly inadequate grossly great contrary or and so weight pertaining damages by of evidence sustained (GCR 527). judicial as to shock conscience Damages Evidence—Verdict—Inadequacy. — negligence conclusively A in an automobile suit did not irrefutably by establish her as uncontroverted fact that mere she testified that had she made certain accident- expenditures related fact some of her medical bills were into admitted evidence where either the reasonable- necessity expenses placed ness or the of some of the issue the cross-examination of the witnesses and testimony of the defendant. Negligence—Rear-End 10. Automobiles — Collision —Instructions Jury Emergency. —Sudden plain- A defendant whose automobile struck the rear end of the tiff’s automobile not was entitled to an on instruction the where, emergency accepting sudden doctrine even the defend- testimony pavement icy, ant’s the was such a condition January day Michigan, would not be unusual for a in nor was plaintiff’s stopped city the situation that the street car had on a op Opinion the Court directly in front of stop response of two vehicles to a sudden in emergency meaning "unexpected” of the sudden within her doctrine. Jury Negligence—Instructions —Sudden Automobiles — 11. Emergency. prejudiced negligence was not plaintiff action an automobile in A jury sudden emer- improper on the instruction to an liability issue gency resolved the where the doctrine instruction, despite improper and favor of improper plaintiff’s theory instruction where the speculative overly damages was awarded to reduce the tended assumption that her predicated the erroneous were uncontroverted. Opinion by Dissenting Levin, J. Jury Prejudice—New Damages — —Verdict—Instructions Trial. jury’s plaintiff's verdict was to show that a burden It is not the emergency in on sudden prejudiced instruction an erroneous collision; the defendant’s rather it is a rear-end automobile result, because did not affect the that the error to show burden product compromise may jurors’ have been verdict who, jurors of the erroneous because the votes of to obtain instruction, originally for no cause of action. intended to vote T. James & P. C.

Franklin, Lichty, Petrulis (by counsel) plain- McCarthy, for Mellon; Daniel J. tiff. Jamieson, P. C. Bohall, &

Martin, Rowe Joselyn, Faleris) Donald W. Jamieson William G. (by defendant. for injured Plaintiff Edna Moore

Fitzgerald, J. Plaintiff com- collision. automobile in a rear-end against defend- negligence menced this action of the automobile the driver Spangler, ant Harold The case was automobile. struck which defend- court, found tried in district $1,344 dam- and awarded ant liable Opinion of the Court ages. Plaintiffs motion for additur or in the alter- native a new trial was denied court, the district appeal and on the circuit court affirmed. Plaintiff raises four issues in her appeal to this Court:

1. Whether the refusal of the circuit court to argument allow oral plaintiffs appeal from the court, district argument where such oral was spe- cifically requested by parties, precluded all plain- tiff exercising from an right effective to appeal in rights violation of the to process due equal protection guaranteed Michigan and United States Constitutions.

2. Whether the trial court erred in denying plaintiffs motion for additur or in the alternative plaintiffs a new trial when uncontroverted out-of- pocket expenses exceeded the verdict jury in favor of plaintiff.

3. Whether the trial court erred in denying plaintiff’s motion for additur or in the alternative a new trial when the failed to plain- consider pain tiff’s and suffering in its verdict.

4. Whether the trial court erred in instructing as to the sudden emergency doctrine. The Court of Appeals denied applica- tion for leave appeal. This granted Court leave (1976). appeal on July 1976. 397 Mich 821 We affirm.

Facts 7, 1969, On January traveling was north in the left hand lane of Dequindre near Riggs in the City of Warren. Plaintiff testified brought she her car stop response to a to a stop her, sudden of two vehicles in front of directly so, and that as she did she was struck from the rear According vehicle driven by defendant. 401 op Opinion the Court defendant, traveling not more than his car was impact. hour at the time of per miles four or five upon impact testified that she further Plaintiff and that she experi- and forward thrown back Soon after woozy”. and "felt pain enced back gas to a station and plaintiff nearby went accident son, gas came to the station and called her who X-rays. for The Hospital her to Martin Place took negative any for frac- X-rays were results taken, were X-rays After the tures or dislocations. station, gas to the and her son returned plaintiff her son’s home. then drove her car to plaintiff and point pain that at this her Plaintiff testified telephoned that she neck was severe and back and Walker, A. physician, Joseph Dr. family her appointment. an make daughter- following morning, plaintiff’s

On to Dr. Walker’s office for her in-law drove her plaintiff examined and appointment. Dr. Walker manipulation, therapy, treated her with shortwave analgesics. Such treatment was and the use of April plaintiff until when had continued pain neck appointment her last for back and with deposition Dr. testified at his Dr. Walker Walker. 19, 1971, my taken on that "at the date of October patient this free” symptom last examination discharged complaints and that she was "with no in the cervical area or the low back”. either 3, 1971, recommendation at the September On plaintiff her visited Dr. Lawrence Wise- attorney, and for man for further treatment for her back at right hip. for her Plaintiff testified treatment 24, 1970, taken on March deposition her was "in with problem hip conjunction with her bothering approximately back” and started her a video- two or three months after the accident. At 13, 1973, Dr. taken on tape deposition February op Opinion the Court testified that he Wiseman saw on three treatment, subsequent occasions for but such treat- ment was discontinued because condition Dr. improved. not Wiseman further had testified congenital had a abnormality (sixth) spine consisting lumbar of an extra verte- and that an predis- bra such "would abnormality one to pose degree significant some to a more prolong and injury healing would and causé a problem”. against

Plaintiff filed suit defendant for negli- 1, 1969, gence on for prayed judg- October against $200,000 ment defendant in the amount of compensate moneys expended her for repair for treatment, to her and medical automobile for en- during pain suffering wages. lost negligence Defendant denied any his answer contributory negligence and claimed as an affirma- tive defense. 20, 1972, April

On the case was to be tried at court, declared, circuit but a mistrial was the jury discharged, was and the case was adjourned. The case subsequently was remanded to district court trial, it appearing to the circuit court less $10,000 than was involved in the case. The case finally was tried before a the 52nd jury in Judicial Court on 23May May District and 1974. Prior closing arguments, plaintiff made a motion for directed question verdict as to the of liability 257.402; based on MCLA MSA 9.2102 the and on Miedema, case of Vander Laan v (1971). 188 NW2d 564 The trial court this denied point proceedings, motion. At this in plaintiff argued that should not receive an instruc- tion on the emergency sudden doctrine under case, facts this but the trial court ruled that such proper. closing argu- instruction was After 401 Mich 360 op Opinion the Court

ments, gave the court an instruction on the sud- doctrine, plaintiff emergency objected. den The plaintiff returned a verdict in favor of $1,344. amount of a motion for addi- subsequently brought

Plaintiff tur trial, in the alternative a new but motion was denied. Plaintiff then appealed to the court, circuit and the judge plain- circuit denied appeal tiff’s from the trial court’s denial of her hearing arguments, motion without oral notwith- standing the fact that both and defendant requested had an specifically opportunity pres- arguments. ent such Plaintiff’s motion for a re- hearing appeal on denial of was also denied circuit judge.

Issues I The first issue plaintiff raises is whether circuit court’s refusal to allow oral argument on plaintiff’s appeal court, from district where such argument requested, specifically precluded from exercising right an effective to ap- peal rights in violation of the process due equal protection. Plaintiff would have rule us the affirmative. It should be noted that with the repeal replacement 1963, 701, of GCR effective 25, 1977, July right argument to oral appeals to circuit court does now exist. See GCR However, 701.10. this recently adopted rule has prospective effect and is only thus of no conse- quence to the at case bar.

It has recognized been well "[appellate] procedure review is not a necessary part legal of a system, required due by process, right nor is the of appeal an right”. inherent or inalienable 4 Am Jur Opinion op the Court 1, Error, 533. & p Chicago, In D 2d, Appeal § Simons, 178 NW R Co C GTJ (1920), this Court stated: court, in with other courts of last consonance "This resort, appeals statutory, are uniformly has held that law, legislature at common and that the not exist do may in what cases and under prescribe discretion its what may be appeals circumstances taken. [Citations therefore, must, Plaintiff look to the statute omitted.] and 210 right for its to be here heard.” to the statute alone 418, district to circuit right to from court appeal The 600.8342; for MCLA MSA provided by court as provides follows: 27A.8342. The statute county circuit for the "Appeals shall be to the court appeals judgment is rendered. All from in which right other as of and all judgments final shall be by appeals All appeals of on tion.” application. be to court shall judgments by entered the circuit court appeals from applica- court be appeals from the district shall "grant right to Plaintiff contends this of a appeal appellant right bestows a to oral upon argumentation before the circuit court where such present- has request properly timely been disagree. providing ed”. Since the statute We circuit right appeal from district court to argument, any right court is silent as to to oral right argument statutory there is no oral court. appeal district court to circuit cases from next that she has been denied argues Plaintiff guaranteed US the law equal protection 2, XIV, Const, since Am and Const art § court appealing their cases from circuit parties right guaranteed Appeals the Court are 370 401 Mich 360 Opinion of the Court argument 1963, oral However, GCR 819.1. equal protection clause of the United States Con- stitution require does not uniformity procedure. Rogers, v Dohany 362; 281 US 299; 50 S Ct 74 L (1930). Ed 904 1963, Nor 1, does Const art §2 require uniformity procedure, since equal- "[t]he ity rights protected by our Constitution is the preserved same as that by the Fourteenth Amend- ment to the Federal Constitution”. Naudzius v Lahr, (1931). 222; 234 NW 581 Of especial relevance to the instant case is the well- settled rule right equal protection of the law is not denied aby state law course of procedure where the same law proce- or course of dure would have applied been any person other in the same state under similar circumstances Anderson, conditions. Tinsley v 101; 171 US 18 S (1898). 805; Ct 43 L Ed 91 Templar v State In Board of Barbers, Examiners of 131 254; 90 (1902), Court, NW 1058 this quoting the United Court, States Supreme Barbier v Connolly, US 27, 31; 5 357; S Ct 28 L (1885), Ed 923 said: * * * "The fourteenth amendment undoubtedly in- * * * tended equal protection security should given be to all under like circumstances in the enjoy- * * * ment Mich personal of their rights civil .” 131 case, In the instant plaintiff has been afforded rights same in her appeal from district court to circuit court as any person other would have been afforded under like Indeed, circumstances. the circuit court was open on the same conditions as it was to others in like circumstances with the same rule as to argument. oral

Plaintiff has not shown that invidious discrimi- nation results from jurisdictional classification Opinion of the Court complains. Loving Virginia, of which she v 388 US (1967). 1817; 1; 87 S Ct 18 L Ed 2d 1010 Nor has penalizes shown that the classification rights. Shapiro exercise of some fundamental Thompson, 618; 394 US S Ct 22 L Ed 2d (1969). Plaintiff also has failed to show that jurisdictional question the classification in has no reasonable basis and thus has failed to sustain her proof burden as to this issue. Wilkins v Ann City Clerk, Arbor 385 670; Mich 189 NW2d 423 (1971). Accordingly, we find that chal- lenge grounds jurisdictional of the classification on the equal protection

that it violates of the law is without merit.

II Plaintiff contends that the trial court erred in denying her motion for additur or in the alterna- tive a new trial when her "uncontroverted” out-of- pocket expenses exceeded the verdict in her favor. provides:

GCR 527.1 granted "A new trial may be any to all or of the parties part and on all or of the issues whenever their rights affected, are materially substantial any of the following causes:” and lists as one of the causes:

"(4) A verdict which is clearly grossly inadequate or or excessive”. pertaining 1963, 527.6,

GCR to remittitur provides: additur, finding

"When a only is made that error in the 401 Mich 360 Opinion op the Court verdict, inadequacy trial is excessiveness may deny a motion for the court new trial on condition days non-moving party that within 10 writing consents in entry judgment to the of an amount found highest judge respec- the tively to be the lowest or amount support. which the moving evidence will If the appeals, party agreement way prejudice this shall in no party agreeing, arguing so appeal, original prevails verdict was correct and if he original may supreme verdict be reinstated court.” Harris, Zielinski v

Plaintiff cites 381; 289 Mich (1939); Hugener Michlap, Mich 286 NW 654 157; Cooper v Christen- App (1966); 139 NW2d 132 sen, (1970); App 185 NW2d 97 Gregory, Jackson v App 301; 188 NW2d (1971), upon in reliance the well-settled rule ignores that where a verdict the uncontro- out-of-pocket verted expenses plaintiff, such inadequate verdict on its face and must be reversed. law,

While has stated the it correctly well-recognized also a rule that courts have "[t]rial large measure of discretion in the matter of granting new trials this court will not inter- fere unless the abuse of palpa- that discretion is Arnold, ble”. Brown v 303 627; Mich 6 NW2d (1942). Griffin, Cleven v 914 Quoting 139; 298 Mich (1941), 298 NW 482 this Court in Brown said: " complaint appellants 'No by jury is made that properly was not instructed as to the element of dam- ages. No claim is made that verdict was obtained improper methods, prejudice sympathy. no There is absolute amount standard which we can measure damages personal injury cases. The pain amount allowed for suffering in the must rest judgment sound of the triers of the facts. Watrous v Conor, 266 (1934)]; Mich 397 v NW 143 Weil [254 373 Opinion of the Court Longyear, 263 Mich 22 (1933)]. NW 536 Courts [248 are reluctant ries on the to juries personal disturb verdicts of for inju ground that the amount is excessive. Ca Co, Paige wood v Earl & 485 NW 402 [214 (1927)]. usually We do not judgment substitute our that or has been unless the verdict shocks the conscience means, by improper secured prejudice or Conor, sympathy. supra; Watrous Smith, Michaels v 240 Mich 628-629. (1927)].”’ NW 413 303 Mich [216 This principle was reaffirmed in Teller v George, 118; 361 Mich 918 (1960); NW2d A’Eno v Lowry, 116 NW2d 730 (1962); Greinke v Yellow Cab Co of Muskegon, 368 Mich 611; 118 (1960); NW2d 835 Trapp v King, 374 Mich (1965). 608; 132 NW2d 640 question The before this Court then is whether the jury verdict in the instant case was so "clearly or grossly inadequate” and so contrary to the great weight of evidence pertaining to damages sustained by as to shock the judicial con- science. A review of the upon cases which plaintiff relies is thus in order to determine whether rule enunciated applicable therein is to the case at bar.

In Harris, Zielinski v supra, this Court held a $1,000 verdict of grossly inadequate and con- to trary great weight of the pertain- evidence ing sustained, where the evidence clearly showed that decedent had a life expectancy years; that he earned on the average $1,500 $2,000 per year; medical bills resulting from the accident $115; totaled the damage to his $625; automobile amounted and that his injuries were severe and he suffered pain during intense the four-day period between the time of the accident and his eventual death. Hugener

In Michlap, v supra, where defendant 401 Mich Opinion of the Court liability damages, admitted but contested $15,000 Court a verdict of upheld for passenger, but reversed a verdict of for $1.05 plaintiff driver on the basis that there was suffi- controverted, cient testimony, which was not "to support a claim by pocket the husband for out of expenses, such as the deductible collision $100 157, expense”. Mich 159. App A new trial lim- ited to a determination of damages was ordered for driver, since he and irrefut- "conclusively ably portion established a alleged damages his in an amount grossly in excess of the jury verdict * * * ”. 2 App Mich 160. Christensen, Cooper v supra, plaintiff was

In attacked group youths at defendant’s drive- in and sustained injuries to his left ankle requir- ing hospitalization Plaintiff surgery. wore a nonwalking cast for six months and was thus unable to work. Uncontroverted testimony at trial $1,139.25 established damages at $1,980.30 medical costs and wages, lost minus $1,037.94 plaintiff had received his assailants. from Reversing $675, the jury verdict of the Court of Appeals, in a majority opinion, gen- followed the eral rule that jury award ignores which un- "[a] out-of-pocket controverted expenses inadequate on its face”. 29 App In Jackson v Gregory, supra, Ap- the Court of peals again ordered a new trial as to only when out-of-pocket uncontroverted expenses were greater case, than the jury verdict. In that the two "proved” out-of-pocket their dam- ages $263.03, were $50.15 and the re- turned a verdict of respectively. In $29 $136 reversing verdict, the Court relied on the Christensen, Cooper above-quoted language supra. Mooke v Opinion op the Court by plaintiff

The four cases cited all have in pertaining common the fact that the evidence damages never Indeed, was controverted. in all of patently jury, cases it these having was clear that liability found existed, breached its duty damages to assess in accordance with the presented. Cooper, evidence In Zielinski and nei- necessity ther the treatment, of medical nor the put duration, reasonableness of its was ever wages Further, issue. the amount of lost in those contested, two cases was never for in Zielinski plaintiff’s average decedent, whose income had per year $1,500 $2,000 been between and who expectancy years, days had a life of 26 died four Cooper, plaintiff accident, after the and in was in a nonwalking leg Hugener, cast for six months. In "conclusively the Court found that had irrefutably” part established that at least grossly his were in excess of the verdict, Jackson, and in the Court found that plaintiffs "proved” out-of-pocket damages their at trial. apparent case,

In the however, instant it is from transcript the trial that either the reasonableness necessity plaintiff’s out-of-pocket or the of all of expenses, exception paid with the of the $66.50 emergency day room treatment on the placed question accident, by the cross-exam- testimony ination of witnesses and the Indeed, defendant. it is clear that did not "conclusively irrefutably” establish her dam- ages by as uncontroverted the mere fact that she that, testified she had made certain accident-re- expenditures lated the fact that some of her medical bills were admitted into evidence.

Plaintiff claims that her "uncontroverted” out- of-pocket damages were as follows: Opinion op the Court

1) by Dr. Walker......... Treatment $908.00 2) 336.00 Medication...................... 3) Deductible........... 100.00 Automobile 4) Hospital Martin Place 66.50

Emergency Room............. 5) Treatment Dr. Wiseman....... 146.00 6) 3,243.00 Wages...................... Lost

$4,799.50 8, January Dr. Walker testified that between 1969, 20, 1970, April plaintiff and came to his osteopathic therapy office on 93 occasions for for However, area and the low back. cervical of Dr. that cross-examination Walker revealed neurological problems had no nerve or plaintiff as that plaintiff a result of the accident had for, experienced, and had been treated cervical fact, pain prior and dorsal to the accident. In Dr. plaintiff Walker testified that had come to him for 2, 1968, August tension on approx- cervical muscle Moreover, five months before the accident. imately plaintiff complain- Dr. Walker testified that "was ing pain anticipate of more than I would with this that her treatment type injury”; lengthy others; comparison to and that factors other than prolong the accident tended to treatment. regard

In to the stack of prescription receipts, 4, which were admitted as exhibit the testimony that prescribed plain- indicates medication tiff Dr. Walker was not all related to directly fact, the accident. In it apparent became from the cross-examination of Dr. plaintiff Walker had prescriptions subsequent to the accident for totally unrelated medical Dr. reasons Walker was unsure he whether much medication prescribed after the accident was for accident, injuries her sustained in the allegedly since plaintiff taking had been the same medica- op Opinion the Court shortly the accident for the before same tion ailments. similar plaintiffs allegedly "uncon- element

Another put which was issue was troverted” wages. Plaintiff testified that she was her lost all for almost a month after the unable to work at work on a and that she could not full- accident year after the for more than a accident. time basis necessity missing However, and reasonableness plaintiff missed was not of work that the amount "conclusively irrefutably” Indeed, established. he collided with testified that when defendant plaintiff, traveling about four his automobile was per hour, and thus the could miles or five merely a concluded that the collision was have tap. cross-examination, Moreover, Dr. Walker that he had never told to take testified length any specific work, left it of time off but had entirely to her discretion. respect by Wiseman, to the treatment Dr.

With September initially administered on which was years than and one-half after the more two plaintiffs accident, and at the recommendation of attorney, necessity noted that it should be put question by such treatment was the follow- ing testimony of Dr. Walker: us, Doctor, know, when

”Q. you you And can tell if treated you was the last time that saw Mrs. Moore and injuries her for her as result of this accident? complete discharged after a "A. We Mrs. Edna Moore 20, 1970, complaints April no examination either in the cervical with area or the low back.” paid trial that she Plaintiff testified at $100 repair policy for the deductible of her insurance shop receipts body However, car. no were her claim, this offered into evidence to substantiate 378 Mich op Opinion the Court nor did describe damage done to her car nor indicate where the repaired. car was In fact, defendant testified that damage to his car slight was so that he never had it repaired. Upon being asked whether there any damage to car, plaintiffs defendant responded: was, "If there I didn’t notice it.” While defendant’s testimony did not prove conclusively damage plain- lack of to car, tiffs such testimony put did the matter issue.

Upon reviewing the various plain- elements of tiffs damages, it becomes readily apparent the cases by plaintiff cited are not applicable the case at bar. Since almost all of alleged damages controverted, were the jury did not breach duty its damages assess in accord- ance with the presented. evidence sure, To be in the instant case ample had opportunity evaluate the testimony and credibility of the wit- nesses, and thus its verdict is entitled to considera- respect ble by this Court. As this Court said in Wolodzko, Stowers v 119; Mich 191 NW2d 355 (1971), quoting Fishleigh v Detroit United Railway, (1919): 171 NW 549 " personal 'In injury cases the amount of subject not ily to exact mathematical calculation. Primar- question is for and we cannot arbitrar- ily judgment substitute our for that of the triers of the facts. That would be to usurp the functions of the ” jury.’

In view of the factual situation presented by the case, instant we cannot say that the jury verdict was so grossly inadequate as to shock the con- science. Accordingly, we find that the trial judge did not abuse his discretion in denying plaintiffs Opinion op the Court motion for additur or in the alternative a new trial. unimpressed plaintiff’s specula- are also with

We happened jury tion that because the verdict exactly plaintiffs total amount of three of (treatment special Walker, $908; items Dr. medication, $336; deductible, $100; automobile to- $1,344) jury completely tal must have disregarded plaintiffs alleged damages other and pain suffering. jury may and The well have con- included, cluded that if all items were compensated only $1,344. Nonetheless, should be this Court will not order a trial on new the basis possibilities. conjecture or mere Herman v (1963). Ploszczanski, 252; 369 Mich NW2d Ill argues Plaintiff next that the trial court erred denying her motion for additur or in the alterna- jury tive a new trial because "the failed to con- plaintiffs pain suffering sider the and in the ver- Mancha, dict”. Plaintiff relies on Weller v (1958), 189; 91 NW2d 352 and Fordon v (1961), Bender, 108 NW2d 896 jury ignores pain the rule that a award which suffering inadequate. plaintiffs argument merit,

We find to be without for the factual situation in the instant case is not comparable presented with those in the Weller supra, Mancha, and Fordon cases. In Weller v verdict was for the exact amount parties stipulated, jury thus, which the possibly pain could not have considered the suffering assessing decedent its supra, Bender, award. In Fordon v fore- report appar- clearly man’s of the verdict made it plaintiff special ent dam- awarded 401 Opinion op the Court ages property damage for and medical bills but nothing pain suffering. for and This Court said: jury "Once the resolved the dispute, causation the great weight of the compelled evidence it to award plaintiff damages pain suffering and which naturally followed injuries such by jury found have been proximately caused defendant.” 363 Mich 124, 125-126. jury Plaintiff bases her contention that alleged pain "could not have considered” her and suffering assumptions: reaching in its verdict on two erroneous (1) out-of-pocket expenses that her (2) jury uncontroverted; were and that "since the did not even consider all the uncontroverted out- of-pocket expenses, it could not have considered * * * plaintiff’s pain suffering and ”. Since we plaintiff’s assumption unsupported have found first assumption the evidence and her second to be speculative conjectural too eration, and to warrant consid- inescapable plain-

the conclusion is that argument ignored jury alleged tiff’s pain that her suffering conjectural

and is at best. Rather ignoring plaintiff’s alleged pain suffering, than and jury it seems obvious that the found that experience pain suffering did not as much injuries from she sustained in the accident as negligence claimed, she or that defendant’s proximate pain suffering not the cause of the experience. did We find verdict was within the range testimony regarding plaintiff’s alleged pain suffering inadequate and was not so as to judicial shock the us, conscience. On the record before prepared say judge we are not the trial denying erred in motion for additur plain- in the alternative a new trial. His denial of Moore Opinion of the Court the decisions of in accord with motion was tiffs comparable cases. Court this

IV the trial court argument last Plaintiffs on the sudden emer- instructing erred objection. plain- It is doctrine over gency that, Mie- as in Vander Laan v contention tiffs case did dema, evidence in the instant supra, the the sudden emergency defendant not entitle instruction was reversi- and that such instruction error. ble judge to the the trial jury,

In his instruction of the assured-clear-dis applicability the discussed statute,2 the rear-end collision statute1 and tance added, objection: then over and "However, was con- you find that the defendant if emergency, his mak- not of own with a sudden fronted ing, ordinary he used care and was you if find that and because of such to avoid the violation still unable emergency, then, course, his violation is excused.” of case, that, in the Vander Laan

We find as reasonable width of the person than will distance ahead.” at a careful and competent overtook and struck the rear same state, deemed appropriate "(a) Any person driving "(a) MCLA MCLA employer direction, the driver or In shall drive prima any permit 257.627; 257.402; evidence, and cases, highway of its driver or action, facie proper, having or him to to the prudent MSA 9.2102: MSA 9.2327: lawfully any operator guilty that a vehicle and of in vehicle any owner bring a vehicle on a of speed any operator.” standing upon any highway court in end of another vehicle of such first mentioned negligence. due it of such first mentioned upon other condition then not to a regard traveling this state when it is shown greater stop highway shall drive the same highway This section shall to the within the in a certain than nor less than is at a traffic, proceeding in the vehicle shall be existing, vehicle and to assured, speed greater surface and within this direction,' apply, clear by no 401 Mich 360 Opinion of the Court in the background factual case at bar did not instruction. Van- emergency warrant the sudden Miedema, v supra, der Laan which the jury action, a verdict of no returned cause of involved a factual situation similar instant case. There too, glanced the defendant in his mirror rear-view so, a second when he looked to the back ahead, road had stopped vehicle he could not avoid collision. Holding that these not facts did entitle defendant to an instruction on doctrine, emergency the sudden this Court said: purview "To come within the this rule the circum- attending present stances the accident must a situation unsuspected’. Barringer Arnold, is 'unusual or (1960). NW2d [101 term is employed "The 'unusual’ here in sense background the factual case varies from the confronting everyday traffic routine the motorist. Such phenomenon an is typically event associated with a example A classical predica- nature. ment envisioned of the 'unusual’ emergency provided doctrine is Home, Patzer v supra Bowerman-Halifax Funeral (1963)], 121 NW2d 843 wherein the [370 Upper accident occurred amid an Peninsula blizzard. " 'Unsuspected’ poten- on the other hand connotes a peril everyday tial come within within the movement of To traffic. emergency the narrow confines of the 'unsuspected’ poten- doctrine as it is essential that the peril had tial not been in any significant clear view for time, length of unexpected. good and was totally A example Anderson, of this can be seen McKinney in supra Mich 851 (1964)], NW2d where [373 plaintiffs defendant ped a stop- rear-ended car which had pushing while highway. a disabled vehicle on the Coming hill, over the crest of a defendant first saw plaintiffs taillights when he away. was feet How- ever, defendant clearly peril did not the see stopping away, until he was about 100-200 feet at point which it was too late to a under avoid collision Furthermore, the circumstances. the failure Opinion of the Court plaintiff the totally signal stopping, he coupled that was with darkness, surrounding the subsequent peril made unexpected to the defendant.” 232.

The facts in the instant case indicate that the circumstances surrounding the accident did not make the police situation "unusual”. The officer who came to the scene of the accident testified at trial that on day question, the in sky was cloudy, light, pavement traffic was was wet, temperature and the was above freezing. accept Even if we were to defendant’s testimony pavement icy, that in fact such a condition would not be "unusual” for a January day in Michigan. Nor was the presented situation which itself "unexpected” to defendant within the mean- ing doctrine, of the sudden emergency for as we said in Vander Laan: whole "This scene continued be in actual view at except all a times 'second so’ when Karsten

glanced in his hitting bump rear-view mirror after process looking the road. While the in the rear-view may interrupted mirror the Mich have defendant’s actual view of scene, he is still held to had have clear view.” 385 While we find that correct her argument trial court erred in instructing doctrine, on the sudden emergency we do not find that prejudicial such error was to plaintiff. Unlike the Vander Laan case and other cited cases by plaintiff, the jury in the instant case resolved the liability issue in favor of plaintiff despite improper prepared instruction. We are not to en- tertain plaintiff’s theory that trial im- court’s proper emergency instruction on the doc- sudden "tended to trine reduce the the jury Levin, Dissenting Opinion by J. as to how she was theory her. Plaintiff’s awarded” is overly instruction improper prejudiced as- the erroneous predicated speculative "uncontrovert- damages were that her sumption preju- was not plaintiff are satisfied that ed”. We therefore, and, the trial diced the instruction be reversed. court should not defendant. Costs to Affirmed. Williams, Coleman, J.,

Kavanagh, C. Jr., JJ., with Moody, concurred Ryan, and Blair Fitzgerald, J. in (dissenting). award-

Levin, jury, While J. $1,344 damages, resolved ing favor, have may that decision in her issue liability origi- Jurors who compromise. product been in a greater for to vote intended nally $1,344 agreed to reduce may have than amount $1,344 jurors the votes of to obtain amount instruction, origi- erroneous who, because no a no cause. We have to vote for intended nally occurred, but neither what knowing that is way that be excluded. can that she was burden to show

It is not error; rather it is the instructional prejudiced by the error to show that the defendant’s burden being There did not affect the result. instruction did not the error concluding no basis trial. result, entitled to a new affect

Case Details

Case Name: Moore v. Spangler

Court Name: Michigan Supreme Court

Date Published: Oct 6, 1977

Citation: 258 N.W.2d 34

Docket Number: 58081, (Calendar No. 1)

Court Abbreviation: Mich.