Mason v. Chesapeake & Ohio Railway Co.

312 N.W.2d 167, 110 Mich. App. 76, 1981 Mich. App. LEXIS 3317

• Court: Michigan Court of Appeals
• Decided: October 6, 1981
• Docket: Docket 49848
• Status: Published

Opinions

Bronson, J.

We concur with all portions of Judge Cynar’s opinion except the analysis contained in part III. Our reasons will be detailed below.

It is true, as Judge Cynar notes, that the trial court ruled that evidence concerning prior settlements was inadmissible. The fact is, however, that this information did come to the jury’s attention. On cross-examination of plaintiff, defense counsel asked him, without objection, whether he had been compensated for his time off due to the previous injuries. Plaintiff answered in the affirmative. Additionally, the testimony of one of defendant’s agents, elicited by defense counsel, to the effect that he did not know if the previous claims had been settled was allowed to stand.

The dissent states that the trial court erred reversibly in not allowing further testimony concerning the previous settlements because the jury was instructed that it should apportion damages between the June 9, 1975, injury and the previous accidents if possible. The jury was repeatedly instructed that only the damages arising from the June 9, 1975, accident were compensable and damages resulting from the earlier injuries were not compensable. Given this instruction, we are unable to see how the jury’s knowledge of the exact contours which the settlements took had any bearing on the jury’s ability to apportion damages caused by the June 9th accident and the previous ones. The dissenting opinion takes the unusual approach of assuming the jury ignored repeated cautionary instructions concerning the apportionment of damages.

We also note that defense counsel did not attempt to present the evidence of settlements on the basis that they were somehow material to the apportionment issue. Instead, defense counsel’s position was based solely on the premise that it would be highly prejudicial if the fact of settlement were not admitted into evidence because the jury might speculate that plaintiff was never compensated for his prior injuries. We also note that plaintiff never made an offer of proof in accordance with MRE 103(a)(2). It is not obvious to us what form any testimony concerning prior settlements would have taken, particularly as the one agent of defendant asked about prior settlements stated that he had no knowledge of them. Thus, we do not believe the apportionment aspect of this issue is properly preserved for appeal. Furthermore, as noted above, we do not believe the fact of the prior settlements of claims arising out of accidents not the basis of the suit was relevant to the apportionment question. The fact of the prior settlements did not make it more probable that damages could be apportioned between the accident which was the basis of the suit and the earlier mishaps. See, MRE 401.

We have already touched upon the second reason, and the one properly preserved for appeal, advanced by the defendant for reversing this case, to-wit: that the jury might speculate that plaintiff was uncompensated for the previous injuries if evidence of the settlements were not admitted. We reiterate our belief that whether or not plaintiff was compensated for the other accidents was immaterial to the apportionment question. At issue was the extent to which plaintiff’s injuries were a product of the June 9, 1975, mishap and to what extent the injuries were caused by previous accidents. The extent of the injuries caused by the various mishaps was in no way altered whether plaintiff received nothing or millions for the previous injuries. As noted previously, the trial court was very careful to instruct the jury that damages were only to be awarded in respect to the injuries suffered on account of the June 9, 1975, occurrence. Unless we assume the following, the preserved basis for appeal presents no basis for reversal: (1) that the jury ignored the court’s instructions that only injuries attributable to the June 9th accident were compensable, (2) that the jury actually found that the injuries sustained by plaintiff could be apportioned between the June 9th mishap and the earlier accidents, and (3) that the jury refused to apportion the damages because it believed plaintiff had never been compensated for the injuries attributable to the earlier accidents except to the extent of lost wages. We might add that it was defense counsel who explicitly elicited from plaintiff the fact that he had been compensated to the extent of wages. Upon receiving this answer no further questions were asked concerning the settlements. In any case, we are unwilling to make the assumptions necessary to justify reversing this matter.

This case was well tried by experienced counsel and was well conducted by an excellent trial judge known for his expertise in tort law. Particularly in light of the trial court’s expert handling of this litigation, we conclude that the dissenting opinion assumes far too much on far too little record evidence. As we read the trial transcript, the court bent over backwards to instruct the jury properly on the use of the evidence of prior accidents and on apportionment of damages. Nothing in the record lends support to the assumption that the jury refused to follow the court’s clear and repeated instructions.

Affirmed. Costs to plaintiff-appellee.

D. F. Walsh, J., concurred.