Mosley v. Dati
110 N.W.2d 637
Mich.
1961
Check Treatment
Souris, J.

Plaintiff appeals from a judgment based upon a jury verdict in tbe precise amount of his medical expenses incurred as a result of injuries suffered when tbe car in which be was sitting was struck from tbe rear by defendants’ car. He charges that tbe verdict was grossly inadequate because it did not award him damages for bis pain and suffering and for loss of earnings.

In Fordon v. Bender, 363 Mich 124, 126, decided last April, we reversed a judgment for inadequacy of a jury verdict in a personal injury case because tbe great weight of tbe evidence compelled an award of damages for pain and suffering and because failure to award such damages by returning a verdict equal only to plaintiff’s special damages manifested disregard by tbe jury of proper instructions given by tbe court.

We are compelled to reach tbe same result in tbe case at bar and for tbe same reasons. There was evidence from plaintiff that he suffered pain immediately after tbe impact at tbe scene of tbe injury and a policeman testified that, indeed, plaintiff then complained of pain. Plaintiff also testified of his various pains, dizziness, headaches and shortness of breath from tbe date of injury to tbe date of trial. His doctor confirmed bis continuing complaints of pain and testified that pre-existing scoliosis and arthritis could have been aggravated, with resulting pain, by the injury to plaintiff. Defendants’ doctor testified that be found tenderness in *692 plaintiff’s dorsal spine, where the scoliosis and arthritis were located, upon percussion and backward bending. We are convinced by a review of the testimony on this point that the great weight of the evidence preponderates in favor of a finding that plaintiff did, in fact, endure pain and suffering as a result of the injuries caused by defendants’ negligence.

As a matter of fact, the jury must have so found, for included in the plaintiff’s medical expenses were the cost of diathermy treatments and hypodermic injections given him to relieve pain. By its verdict the jury found such treatments and injections to be reasonable in cost and necessary to the treatment of plaintiff’s injuries. Having found there was pain and suffering and having awarded damages to compensate plaintiff for the medical cost of relieving such pain, the jury could fail to award plaintiff damages for the pain already endured only by arbitrary, capricious disregard of the trial judge’s explicit instructions to the jury. The verdict must, therefore, be set aside.

In view of the foregoing conclusion, other questions raised in this appeal, not likely to recur on retrial, are not discussed.

Reversed and remanded for new trial. Costs to plaintiff.

Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred.