Van Haaften v. Miller-Davis Co. ( 1974 )

Quinn, J.

Defendant appeals from the July 9, 1973 order of the trial court which denied defendant’s motion to set aside a default and default judgment entered against it in this personal injury negligence action. In the trial court and here, defendant admits liability and only desires to contest the amount of damages.

November 4, 1970, plaintiff was injured. Negotiations for settlement between plaintiff’s attorney and defendant’s insurer failed, and plaintiff’s action was filed December 29, 1972. January 2, 1973, copies of the summons and complaint were served on defendant who forwarded them to the local agent of defendant’s insurer. January 3, 1973, the local agent mailed the papers to the Grand Rapids claims office of defendant’s insurer which received them January 5, 1973. Apparently, someone in the latter office misplaced the papers. In any event, defendant’s insurer took no further action until June 1973.

January 29, 1973, plaintiff filed defendant’s default and April 11 and 20, 1973, plaintiff presented proofs in support of her claim. At the conclusion of proofs, the trial court found for plaintiff in the amount of $20,000 and costs, and judgment pursuant thereto entered April 24, 1973.

June 14, 1973, the claims manager of defendant’s insurer’s Grand Rapids office first learned of plaintiff’s default judgment in a conversation with her attorney. June 19, 1973, defendant moved to set aside the default and default judgment. This motion was argued June 25, 1973 and it was denied. An order of denial entered July 9, 1973.

In spite of the seven points raised in defendant’s brief on appeal, we perceive only one decisional issue. Did the trial court clearly abuse its discretion in denying defendant’s motion to set aside the default and default judgment?

This case is not similar to Walters v Arenac Circuit Judge, 377 Mich 37; 138 NW2d 751 (1966), which contained no controlling language in any event. Here we have a default judgment and admitted liability. Walters, supra, involved only a default and a probable contest over liability.

The case at bar more nearly resembles Asmus v Barrett, 30 Mich App 570; 186 NW2d 819 (1971). In Asmus, the trial court refused to set aside a default judgment for failure to establish a meritorious defense and the trial court was affirmed by this Court. Here, defendant concedes liability.

For us to find a clear abuse of discretion on the part of the trial judge, the record must lack evidentiary support for the damages awarded, or the award must be one that shocks our conscience. Our review of the record discloses evidentiary support for the damages awarded.

Plaintiff was 85 years old and in good health when injured. She was enjoying an active retirement. In addition to pain, suffering and discomfort, treating with a doctor for nearly a year, purchasing and taking pain remedies and tranquilizers, wearing a cervical collar, plaintiff had to give up many of the things she enjoyed doing in retirement. The evidence indicates that her activities will be curtailed in the future because the injury she suffered aggravated a condition brought on by her age. Activity as opposed to inactivity for a retired person is as difficult to measure in dollars and cents as is pain and suffering, but an award of $20,000 in this case in 1973 does not shock our conscience.

Affirmed with costs to plaintiff.

Allen, P. J., concurred.