Cooper v. Christensen

185 N.W.2d 97, 29 Mich. App. 181, 1970 Mich. App. LEXIS 1097

• Court: Michigan Court of Appeals
• Decided: December 10, 1970
• Docket: Docket 8070
• Status: Published

Opinions

R. B. Burns, J.

In October of 1963, plaintiff was attacked at defendant’s drive-in by a group of youths. Resulting injuries to his left ankle required hospitalization and surgery. For six months plaintiff wore a nonwalking cast which was removed in late March, 1964. At the time of the attack plaintiff was employed by the Sampson-Hill Corporation. He never returned to work for them. He had filed an application with the Ford Motor Company prior to the assault and Ford called him to work on April 1, 1964. He reported immediately and engaged in heavy physical labor, which he was able to perform regularly from then on. Plaintiff received no medical treatment after April 1.

The medical records librarian for Wayne County General Hospital testified that plaintiff’s medical treatment, excluding doctors’ fees, cost $1,139.25. No evidence regarding doctors’ fees was submitted.

The chief accountant for the Sampson-Hill Corporation testified that plaintiff was on sick leave from October 14, 1963, until April 3, 1964, during which time he lost $1,980.30 in wages.

Plaintiff testified regarding his injury, hospitalization, surgery, pain and suffering, and wearing of a nonwalking cast. There was no evidence of complications or permanent disability. Over counsel’s objection, plaintiff testified on cross-examination to the receipt of $1,037.94 from his assailants.

The trial court gave the jury the following instruction :

“And I also charge you that the plaintiff has received a sum, according to the testimony, of $1,037.94 from the three boys that committed the assault. And therefore, if you should find the defendant liable, you must deduct the sum of $1,037.94 from the amount of damages you find the plaintiff has proven.”

The jury awarded plaintiff $675. Plaintiff appeals the denial of his motion for a new trial. He claims that the court below erred in allowing the jury to deduct the sum paid by his assailants from any damages, and that the award was grossly inadequate.

The consideration received by one injured as a consequence of a tort committed by two or more tortfeasors operates to reduce, pro tanto, the amount of damages he is entitled to recover against any other tortfeasor responsible for his injuries, and this is so whether the tortfeasors are joint or independent. MCLA § 600.2925 [2] (Stat Ann 1962 Rev § 27A.2925[2]). Larabell v. Schuknecht (1944), 308 Mich 419. Thus, the trial court did not err in allowing the jury to reduce plaintiff’s damages by the sum previously paid by the youthful assailants.

Nevertheless, uncontroverted testimony was before the jury establishing plaintiff’s damages at $2,-081.61.¹

A jury award which ignores uncontroverted out-of-pocket expenses is inadequate on its face. Hugener v. Michlap (1966), 2 Mich App 157; Whitson v. Whiteley Poultry Co. (1968), 11 Mich App 598. So too, an award which ignores pain and suffering is also inadequate. Fordon v. Bender (1961), 363 Mich 124.

The award in this case was substantially less than the established special damages suffered by plaintiff and failed to consider pain and suffering.

Reversed and remanded for a new trial. Costs to plaintiff.

Holbrook, P. J., concurred.

1 Hospital expenses $1,139.25, plus lost wages $1,980.30, minus $1,037.94 paid by defendants prior to this action in mitigation of