Smith v. Jones , 6 Mich. App. 92 ( 1967 )

Quinn, P. J.

As the result of injuries sustained by Ollie Mae Smith when an automobile owned by Miranda and driven by Jones struck the front porch of plaintiffs’ residence causing a piece of wood to strike Ollie Mae on the leg, plaintiffs filed complaint for damages for such injuries, pain and suffering, impairment of earning capacity and the medical expense for care and treatment of Ollie Mae incurred by her husband, Ollie Z. Smith. The allegation of liability as to Miranda is that he “was guilty of gross negligence and wanton misconduct in entrusting the operation of his automobile to an intoxicated person.” The latter was Jones who was never served with process and never became a party. With respect to this allegation, Miranda answered that he did not know Jones was intoxicated at the time he was operating the vehicle. The case was tried with the issue of Miranda’s liability thus framed, but on his own motion,' the trial judge refused to submit the question of gross negligence to the jury. The case was submitted to tbe jury on tbe basis of negligence and resulted in jury verdicts for plaintiffs, $2,500 for Ollie Mae and $719.85 for Ollie Z. Tbe latter sum was tbe exact amount of tbe expense for care and treatment of Ollie Mae. Judgments entered on tbe verdicts and tbe trial court file discloses payment thereof.

Plaintiffs appeal and assert a multitude of errors, some of which would clearly require reversal if tbe jury verdicts bad not been in plaintiffs’ favor. However, plaintiffs recovered and they made no claim below nor do they claim here that tbe verdicts were inadequate or against tbe weight of tbe evidence. No motion for new trial on tbe basis of inadequacy was made in tbe trial court. Since tbe errors complained of would only be prejudicial with respect to tbe amount of tbe verdicts, we believe Davis v. Jermstad (1957), 350 Mich 439, is dispositive of this appeal and we decline further comment on tbe errors asserted by plaintiffs.

Affirmed, with costs to defendant.

Fitzgerald and Holbrook, JJ., concurred.