Tracey v. Campbell

Michigan Court of Appeals

Tracey v. Campbell

167 N.W.2d 865, 16 Mich. App. 265, 1969 Mich. App. LEXIS 1364

CourtMichigan Court of Appeals

DecidedFebruary 27, 1969

DocketDocket No. 5,159

StatusPublished

This text of 167 N.W.2d 865 (Tracey v. Campbell) 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

Tracey v. Campbell, 167 N.W.2d 865, 16 Mich. App. 265, 1969 Mich. App. LEXIS 1364 (Mich. Ct. App. 1969).

Pincite

Opinion

Per Curiam.

Action by plaintiff minor by his next friend. Plaintiff child was burned when he and other children attempted to jump over a pile of burning leaves raked and piled in defendants’ backyard. Disfigurement and skin grafts resulted. A jury returned a verdict for $5,000 for the boy’s mother and $1,000 for the boy. A motion for new trial on the grounds of an inadequate verdict ($1,000) was denied and the minor appeals, requesting either a new trial in whole or a partial trial as to his damages only.

The plaintiff in this case suffered permanent and disfiguring damages. To grant a partial new trial where the jury was properly instructed, no prejudice occurred and the evidence Avas not clearly for plaintiff requires that several factors be present. First, the liability must be clear and that does not appear to be in contention here. Second, GCR 1963, 527.1 alloAvs a new trial to be granted “to all or any of the parties and on all or part of the issues whenever their substantial rights are materially affected.” Third, the award must be so inadequate as to “shock the judicial conscience.” Given the exent of the injuries here, and after consideration of the other factors, we hold the award is not in good conscience a fair compensation for the pain and suffering occasioned by the burns.

Reversed. Remanded for a neiv trial as to minor plaintiff’s damages. Costs to appellant.

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Per Curiam.

Action by plaintiff minor by his next friend. Plaintiff child was burned when he and other children attempted to jump over a pile of burning leaves raked and piled in defendants’ backyard. Disfigurement and skin grafts resulted. A jury returned a verdict for $5,000 for the boy’s mother and $1,000 for the boy. A motion for new trial on the grounds of an inadequate verdict ($1,000) was denied and the minor appeals, requesting either a new trial in whole or a partial trial as to his damages only.

The plaintiff in this case suffered permanent and disfiguring damages. To grant a partial new trial where the jury was properly instructed, no prejudice occurred and the evidence Avas not clearly for plaintiff requires that several factors be present. First, the liability must be clear and that does not appear to be in contention here. Second, GCR 1963, 527.1 alloAvs a new trial to be granted “to all or any of the parties and on all or part of the issues whenever their substantial rights are materially affected.” Third, the award must be so inadequate as to “shock the judicial conscience.” Given the exent of the injuries here, and after consideration of the other factors, we hold the award is not in good conscience a fair compensation for the pain and suffering occasioned by the burns.

Reversed. Remanded for a neiv trial as to minor plaintiff’s damages. Costs to appellant.

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Bluebook (online)

167 N.W.2d 865, 16 Mich. App. 265, 1969 Mich. App. LEXIS 1364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracey-v-campbell-michctapp-1969.