Toman v. Checker Cab Co. , 306 Mich. 87 ( 1943 )

I do not concur in reversal. Mr. Justice SHARPE would reverse and grant a new trial on the grounds that the court erred (1) in submitting future pain and suffering to the jury as an element of damages without any proof of future pain and suffering, and (2) in failing to charge the jury as to the present worth of future pain and suffering. Essentially, both of these grounds are based upon the question whether the verdict was excessive. Mr. Justice SHARPE writes that there was no evidence introduced relative to future pain and suffering, no foundation for such an item of damages, and that therefore the court was in error in submitting future pain and suffering to the jury as an element of damages. I do not agree that there was no evidence of future pain and suffering. The trial occurred substantially 18 months after the automobile accident, and plaintiff testified:

"I have pain. * * * That arm still bothers me. When I try to do something it bothers me here (indicating left forearm). In my work sometime I have to lift bushels. Can't do it so good like used to. I am still suffering other pains in the side — ribs. Over here (indicating) — this left side. * * * It hurts when I work. * * * I am doing some work now on the farm. I cannot do the work now in the same manner as I did it before the accident, not yet. * * * I am still suffering from pain."

Under the foregoing record, I think it was proper to submit to the jury whether plaintiff, who was still suffering pain 18 months after the accident, would continue to suffer some pain for some time after the trial of the cause; and that the jury might consider the element of future pain and suffering in fixing damages. The trial court plainly charged the jury there was no proof of permanent injury, but there was still left the question of future pain and suffering, for consideration by the jury.

Mr. Justice SHARPE would also reverse because the trial court did not instruct the jury as to present worth of future pain and suffering, citing Nickels v. Hallen, 247 Mich. 291. In that case, the trial court charged the jury that the rule for determining the present worth of prospective damages was as follows: To take the sum found by the jury, multiply that sum by 1.05 to find the present worth for one year, by 1.10 for two years, by 1.15 for three years, and so on. Mr. Justice WIEST properly wrote this was an obvious error and mistake because present worth for future damages is determined by reducing the original sum annually during lifetime, not by increasing it. InWeaver v. People's Motor Coach Co., 237 Mich. 274, the failure of the trial court to instruct the jury on the subject of present worth of future damages was held to be cured by remittitur of $100 from a verdict and judgment for $2,000, on the ground that it affected only the amount of verdict. In that case, approximately $1,000 actual monetary damages were proven for doctor bills, property damages and loss of earnings. This did not include anything for past pain and suffering up to the time of trial, so that the $1,000 allowed over and above the actual damages was evidently allowed by the jury for past pain and suffering, permanent injury and future pain and suffering. As in the case at bar, the evidence of future pain and suffering was slight and inconsequential as compared to past pain and suffering. In Brandt v. C.F. Smith Co., 242 Mich. 217, error was assigned on the ground that the damages were excessive and complaint was made relative to the failure of the trial court to charge the jury as to the method of computing the present worth of damages for future pain and suffering. A verdict and judgment for $10,000 damages for personal injuries was held not to be excessive, provided the plaintiff filed a remittitur of $2,000 from the judgment. Thus, the grounds for reversal assigned by Mr. Justice SHARPE seem to have been considered by this court as inseparable from the question as to whether the verdict was excessive.

In the case at bar, plaintiff had verdict and judgment for $1,000. Upwards of $700 of this amount is within the range of the testimony as to actual damages for the destruction of plaintiff's truck (which was sold as junk for $45), his hospital bill, doctor bill, a load of vegetables destroyed in the accident, and loss of earnings. In addition, there was testimony that plaintiff's nose was broken in the accident, his face, arm and leg injured, and his ribs damaged or broken. He was hospitalized five days, spent two weeks in bed at the home of a relative, then most of two months in bed upon his return home. As indicated, he suffered considerable pain during the 18 months before the case was tried and was still suffering pain at the time of the trial. The jury may well have considered the $300 allowed in addition to the actual proven damages as recoverable for pain and suffering during the 18 months before trial, without any allowance for future pain and suffering. In the lower court, the defendant did not move for a new trial on the ground that the verdict was excessive or that the court erred in charging the jury as to damages. There were no requests filed for the trial court to charge on the question of damages, consequently we have no claim of error for failure to charge as requested. At the conclusion of the charge, counsel for both parties were asked whether they had any further suggestions and replied in the negative. Passing the question whether under these circumstances this court should consider whether the verdict was excessive because of the charge, or the failure to charge on the ground of present worth for future pain and suffering, the verdict was not so great as to shock any judicial conscience and the judgment should not be set aside on the ground of excessive verdict. The failure to charge as to present worth of future damages in the absence of any request is inconsequential, did not materially affect the verdict, and was not reversible error.

I have examined the other assignments of error and find none that requires reversal. The verdict was not contrary to the great weight of the evidence and the judgment is affirmed, with costs to appellee.

CHANDLER, NORTH, STARR, BUTZEL, and BUSHNELL, JJ., concurred with BOYLES, C.J.