Trapp v. King

132 N.W.2d 640, 374 Mich. 608, 1965 Mich. LEXIS 359

Opinions

Kavanagh, C. J.

This is an action brought in May, 1962, under the death by wrongful act statute.

Footnotes

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* Plaintiff, the administrator of the estate of Gerald Marlin Baker, alleged in his declaration that the October, 1961, death of his decedent, the 4-year-old grandson of defendant, was caused by defendant’s negligence. Claim was made for loss of “care, love and affection of said deceased until he should become of the age of 21 years, in the sum of $49,000,” and for funeral and burial expenses.

The act which gave rise to this cause was the 4-to 7-foot forward lurch by a jeep which was in gear when allegedly negligently started by defendant. As the jeep lurched, plaintiff’s decedent screamed, and after the incident was found lying on the edge of ,a- cement-block step.

On trial in 1963 to the court without a jury, the physician who examined the body of the decedent, who had died shortly after arrival at a hospital, testified that it was his opinion that the hoy died of a rupture of his spleen caused by a backward fall on the step.

The trial court found the sudden forward movement of the .jeep caused the fatal fall and this sudden movement was caused by the negligence of defendant. These findings established defendant’s liability, with no affirmative defenses at issue.

The court then delivered its opinion as to the award of damages:

“The Court: Those 2 bills (doctor and funeral amounts stipulated to) would total $337.30. That leaves the item of damages to the parents by reason of their being deprived of the care, love and affection ■of Jerry until he reached the age of 21.

“In their arguments counsel for both parties pointed out to the court that the suffering caused these parents'-can hardly be measured in dollars, nor can they be fully compensated in dollars. This is an action in which damages are sought from the defendant, the grandfather of the deceased, for the benefit of and claimed to have been suffered by the daughter of the defendant and her husband. There is no way that this court in the awarding of damages can assuage the suffering that the parents of this little boy have gone through, or that the defendant, the grandfather of this little boy, has gone through. It is conceivable, of course, that to permit this administrator to force payment by the defendant of a large sum of money might cause further suffering to his daughter. This is a family relationship in this case.

“Having all these things in mind and drawing upon my own common sense, which I hope I have, as I tell the jurors to draw upon their common sense in arriving at damages, it is this court’s determination and decision that the plaintiff have a verdict against the defendant in the total amount of $1,837.30.

“Mr. Sloan (attorney for plaintiff): The Court said eighteen hundred?

“The Court: $1,837.30. $1,500 for the loss of the parents—damages.”

From judgment in accordance with that opinion, plaintiff appeals.

On appeal, plaintiff claims the trial court erred in awarding inadequate damages because of being influenced by sympathy for the family relationship involved. Plaintiff seeks damages as set forth in his declaration, or, in the alternative, partial new trial limited to the issue of damages.

A major element in the trial court’s determination of damages was specified in the opinion as the avoidance of “further suffering to his (defendant’s) daughter (mother of the deceased child)” which might be caused by the forced payment of a large sum of money by defendant to plaintiff. While a judge without sympathy and compassion would be' a discredit to his robes, yet we members of the judiciary can never allow this emotion to be controlling of a legal issue, such as a question of damages. The trial court erred in doing so here.

Remedy for such error is provided for by GCR 1963, 527.1(3), which, under the title “New Trials; Amendment of Judgments,” reads:

“1. Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues whenever their substantial rights are materially affected, for any of the following causes: * * *

“(3) Excessive or inadequate damages appearing to have been influenced by passion or prejudice”.

This constitutes a codification of the long-standing principle stated in Michaels v. Smith, 240 Mich 671, 675, in the following manner:

“Not being triers of the facts, we should not substitute our judgment for that of the jury on the question of the size of the verdict unless it was secured by improper methods, or unless we are satisfied that prejudice, sympathy, or some unreasoned element of an important character entered into the jury’s consideration of the case.”

This principle was reaffirmed in Teller v. George, 361 Mich 118. It also applies in cases where the trial judge is the trier of the facts.

In regard to the granting of a full new trial or a partial new trial on the issue of damages only, we find direction in our recent decision in Garrigan v. LaSalle Coca-Cola Bottling Co., 373 Mich 485. There we restated our disapproval of partial new trials limited to the issue of damages and noted that the only exception made by this Court had occurred in a case where the liability was clear.

As it is, the case at hand presents just such an exceptional situation, and the added circumstance, of having befen tried to a court without a jury. The trial court found negligence in defendant’s starting ■the jeep while in gear, and on the question of proximate cause, that the lurching of the jeep was a proximate cause of decedent’s fall on the basis that “there is no other explanation for the position of Jerry’s body on the top cement block step other than the starting of the jeep.” These findings established .a case of clear liability, as suggested by Bias v. Ausbury, 369 Mich 378. Even should the liability be not so clear, however, we would not discourage partial retrial limited to damages only when a trial judg’e, sitting without a jury, has exhibited as his only error in a thorough and otherwise correct opinion an invalid basis for determining damages.

Plaintiff seeks, alternatively, award by this Court of the full $50,000 prayed for in the declaration and cites GCR 1963, 820.1(7) as the basis for the propriety of such an award. This Court has found that the identical predecessor* to the above sub-rule was not intended to constitute this Court as a super fact-finder in determining the amount of unliquidated damages. Holcomb v. Bullock, 353 Mich 514.

The judgment is reversed and remanded to the trial court for partial new trial limited to damages only. Plaintiff shall have costs.

Souris, O’Hara, and Adams, JJ., concurred with Kavanagh, C. J.

CL 1948, §§ 691.581-691.583 (Stat Ann 1959 Cum Supp §§ 27.711-27.713).

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Court Rule No 72, § 1(g) (1945).