Cogo v. Moore

327 N.W.2d 345, 119 Mich. App. 747
CourtMichigan Court of Appeals
DecidedSeptember 23, 1982
DocketDocket 57679
StatusPublished
Cited by6 cases

This text of 327 N.W.2d 345 (Cogo v. Moore) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cogo v. Moore, 327 N.W.2d 345, 119 Mich. App. 747 (Mich. Ct. App. 1982).

Opinions

Per Curiam:.

Defendant appeals as of right from a judgment entered pursuant to a jury verdict in [750]*750favor of plaintiff for $20,000 in damages for injuries sustained in an automobile accident.

The relevant facts are not in dispute. On July 19, 1975, plaintiff was driving her 1974 Mustang on the Lodge Expressway near Linwood in the City of Detroit. As plaintiff approached the Linwood overpass, traffic slowed as the expressway narrowed from three lanes to one lane due to construction. Plaintiff was traveling at a speed of approximately five miles per hour when her car was struck from behind by a vehicle driven by defendant, forcing her car into the car in front of her. Plaintiff was thrown foreward and she struck her leg on the armrest of the door. As a result of this accident, plaintiff sustained a hematoma (bruise) on her left thigh which swelled to a large lump. The lump developed into a lipoma, which is a fatty tumor, which became filled with considerable fibrotic connective tissue. Eventually, this tumor had to be surgically removed. The surgery left a scar and a depression around the scar nearly five inches long and three inches wide.

On the first day of trial, prior to selection of the jury, defense counsel indicated that defendant conceded and would stipulate to liability for the accident. The matter proceeded to trial on the issues of whether plaintiff’s injuries met the no-fault threshold, and if so, the amount of damages to which she was entitled.

At the conclusion of its instructions to the jury, the trial court provided them with the following, seemingly unambiguous, special verdict form.

"Verdict

"Question No. 1: Was the defendant’s negligence a proximate cause of an injury to the plaintiff?

"Answer: _(yes or no)

[751]*751"If your answer is 'no’, do not answer any further questions.

"Question No. 2: Did the injury which plaintiff suffered result in serious impairment of a body function, or permanent serious disfigurement?

"If your answer is 'no’, do not answer any further questions.

"Question No. 3: What is the total amount of plaintiff’s noneconomic loss damages?

"Amount: $__”

Defendant’s first allegation of error arises from an unpredictable and inexplicable series of events that transpired during the jury’s deliberations. Shortly after the jury commenced its deliberations, the trial court received a note from the jury reading:

"We have answered questions 1 and 2. We have a No answer for question 2. 5 to 1. Are we to decide on an amount for her to receive?”

Defense counsel argued that this note constituted a "verdict” for defendant but the trial court decided that, since it was in the form of a question, the jurors would be called in and questioned. Upon the jury’s return to the courtroom, the court inquired of the foreman whether they had found that there was a serious impairment of a body function. The foreman indicated that the jury had voted "5 to 1 on that question”. The court then determined that the jury should be sent back to deliberate the question of whether the plaintiff had suffered a permanent serious disfigurement. Before sending the jury back to deliberate, the trial court decided to redraft the verdict form to separate the questions of serious impairment of a bodily function and permanent serious disfigure[752]*752ment. Accordingly, the jury was given a revised verdict form which was identical to the original in all respects except that it required responses to four rather than three questions. The revised portion of the verdict form is set forth below.

"Question No. 2: Did the injury which plaintiff suffered result in serious impairment of a body function?

"Question No. 3: Did the injury which plaintiff suffered result in permanent serious disfigurement?

"If your answer is 'no’, as to questions 2 & 3, do not answer any further questions. If your answer is 'yes’ to 2 or 3 then go on to question 4 as to damages.”

Approximately one hour later, the court received another note from the jury which read:

"To question No. 3. We do not feel that her scar is a serious disfigurement, but it is a permanent disfigurement. Can this word 'serious’ be struck from the question?”

The court called the jury back into the courtroom and repeated the instructions on permanent serious disfigurement. Approximately ten minutes later, the jury returned with a verdict in favor of plaintiff in the amount of $20,000.

Defendant claims, on appeal, that the trial court erred in refusing to accept the jury’s findings as they were written in their notes and by not entering a verdict thereon. This claim is not supported by law.

In Rottmund v Pennsylvania R Co, 225 Pa 410, 414; 74 A 341 (1909), the court stated:

"All the authorities agree that the only verdict is [753]*753that which the jury announce orally in court and which alone is received and recorded as the jury’s finding. Mitchell, J., in Kramer v Kister, 187 Pa 227; 40 A 1008; 44 LRA 432 (1898).”

More recently, the Court of Appeals for the Fifth Circuit held that votes taken in the jury room prior to being returned in court are merely preliminary and are not binding. United States v Taylor, 507 F2d 166 (CA 5, 1975). This Court recently adopted the Taylor rule in People v Mock, 108 Mich App 384; 310 NW2d 390 (1981).

This rule is consistent with GCR 1963, 512.2 which provides:

"The jury agreeing on a verdict shall return into court and announce their verdict. A party may require a poll which shall be by the clerk asking each juror if it is his verdict. If any juror expresses disagreement on such poll and the number of those agreeing is less than required by law, the jury shall be sent out for further deliberation; otherwise the verdict is complete and the jury shall be discharged.”

In People v Fleish, 306 Mich 8, 14; 9 NW2d 905 (1943), the Supreme Court stated that a juror could recant a previous assent to a verdict at any time prior to his express in-court assent at the polling. Accord, Wayne County Prosecuting Attorney v Detroit Recorder’s Court Judge, 64 Mich App 408; 235 NW2d 799 (1975).

No verdict having been reached, it is clear that the trial judge, in revising the verdict form and reinstructing the jury before sending them back for further deliberations, took a proper and reasonable course. The verdict entered by the trial court was the only true and valid verdict.

Secondly, defendant argues that plaintiffs counsel committed error requiring reversal when he [754]*754intentionally injected the question of liability insurance coverage into the trial. During closing argument, in rebuttal to defense counsel’s closing argument, plaintiffs counsel stated:

"You know, he also said something that I think I have to remark. I have to say to you, he said what he wants is money taken out of Mr. Moore’s pocket and put in her pocket. That is untrue. Whatever award that you render in this case will not, will not, I submit to you, come out of Mr. Moore’s pocket. That is an untruth. And I challenge that statement.”

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Cogo v. Moore
327 N.W.2d 345 (Michigan Court of Appeals, 1982)

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Bluebook (online)
327 N.W.2d 345, 119 Mich. App. 747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cogo-v-moore-michctapp-1982.