Blacha v. Gagnon

• Decision Date: 22 May 1973
• Docket Number: Docket No. 12929,No. 2,2
• Citation: 209 N.W.2d 292,47 Mich.App. 168
• Parties: Edward BLACHA and Dorothy E. Blacha, Plaintiffs-Appellants, v. James David GAGNON and Charles Gagnon, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 292

209 N.W.2d 292

47 Mich.App. 168

Edward BLACHA and Dorothy E. Blacha, Plaintiffs-Appellants, v. James David GAGNON and Charles Gagnon, jointly and severally, Defendants-Appellees.

Docket No. 12929.

Court of Appeals of Michigan, Division No. 2.

May 22, 1973.

Released for Publication July 25, 1973.

John S. Richardson, Detroit, for plaintiffs-appellants.

Mather, Glime & Daoust, Mt. Clemens, for defendants-appellees.

Before FITZGERALD, P.J., and McGREGOR and TARGONSKI, ^* JJ.

FITZGERALD, Presiding Judge.

Plaintiffs appeal as of right from a jury verdict of no cause of action on the issue of damages.

On January 4, 1968, plaintiff Edward Blacha was traveling west on Frazho Road in Macomb County. While stopped behind a car preparing to turn left onto Patton Road, plaintiff's vehicle was struck in the rear by an automobile driven by defendant Charles Gagnon. The impact caused plaintiff's vehicle to collide with the car in front of him. Following police investigation, plaintiff drove the driver of the car in front of him to her home, then proceeded to his place of employment, Fisher Body.

At the time of the accident, plaintiff felt no pain, though he admitted to being 'shook up'. He arrived at the plant about 9 o'clock a.m. and worked the full day. Plaintiff testified he felt stiff across the back of the neck the following morning, but he reported for work at his usual starting time of 7:30. Allegedly, plaintiff was unable to sit or bend, and received permission to leave work at 10 o'clock a.m. Plaintiff testified that he was unable to get out of bed the following morning (Saturday) and was treated later that day by Dr. Ribbentrop. Plaintiff resumed his duties at Fisher Body the following week, working an additional two hours overtime four of the five days. He did not work from January 15, 1968 until April 18, 1968. During this time, plaintiff alleged, his once-active life that included softball, bowling, and other athletic activities had been sharply curtailed as a result of the accident. This testimony was controverted by defendant's claim that plaintiff continued to bowl regularly and participated in two softball games six months following the accident. Plaintiff was treated by Dr. Ribbentrop on a weekly and biweekly basis until April 13, 1970.

Testimony was introduced that plaintiff received wage continuation benefits from Fisher Body amounting to $36.90 less than the income he normally would have received if he had been regularly employed. Defense counsel introduced evidence that plaintiff remained an active participant in softball and bowling from the 1968 season to the present time. A physical examination conducted February 22, 1969 by Dr. Max Newman revealed no evidence of any objective symptoms of neck or back injury. Plaintiff and his wife sought damages for medical expenses, pain and suffering, loss of wages, loss of earning capacity, and loss of consortium. A directed verdict as to the liability of defendant was granted to plaintiffs. The jury, in determining the question of damages, returned a verdict of no cause of action. Plaintiff's motion for new trial and, in the alternative, for judgment notwithstanding the verdict was denied.

The several issues raised relate to the admission of evidence that plaintiff received wage continuation benefits as reimbursement for a substantial part of 'loss of wages' during his leave of absence. Plaintiffs contend the collateral source rule prohibits the use of such evidence for any purpose whatsoever. Defendants argue the collateral source rule is one of substantive law rather than an exclusionary rule of evidence. Their position limits the collateral source rule to instances where such evidence is offered to mitigate damages. This does not preclude the admission of relevant evidence to show plaintiff's motive for failure to return to work.

The collateral source rule provides that compensation due an injured party from an independent source other than the wrongdoer does not operate to lessen damages recoverable from the wrongdoer. Recovery based upon an insurance contract for the value of goods damaged by fire does not preclude a right of action against the party responsible for the fire. Perrott v. Shearer, 17 Mich. 48 (1868). The issue before the Court involved mitigation of damages only. Evidence that owners of buildings or goods destroyed by fire were reimbursed by their insurance company was ruled inadmissible in an action against the responsible defendants. Hagan v. The Chicago D & C G T J R Co, 86 Mich. 615, 49 N.W. 509 (1891); Peter v. Chicago &amp W M R Co, 121 Mich. 324, 80 N.W. 295 (1899). Neither subsequent case expanded upon the issue decided in Perrott.

Recovery of wages or salary by an injured person from his employer may not be introduced to mitigate damages. Motts v. Michigan Cab Co., 274 Mich. 437, 443--444, 264 N.W. 855, 858 (1936). The Court limited its ruling to mitigation of damages.

'The prevailing doctrine in this country, however, is that, when the salary or wages of an injured person is paid by his employer during the time he is unable to perform services by reason of his injuries, such payment is no ground for mitigation or diminution of the damages to be paid by one who caused the injury. Cunnien v. Superior Iron Works Co, 175 Wis. 172, 184 N.W. 767, 18 A.L.R. 667. See, also, the annotation thereto in 18 A.L.R. 678 Et seq, where the authorities are collected and digested'.

Motts analogized recovery of wages and salary to damages reimbursed through insurance, and adopted the rationale espoused earlier in Perrott that defendant has no equitable or legal claim to share in the amount paid to plaintiff as a result of damages suffered. The language specifically limits the application of this rationale to questions of mitigation of damages. The litany of cases cited by plaintiff are limited in the same respect.

Plaintiff's most persuasive basis for reversal could have been advanced by proving that evidence admitted by the defendant regarding a wage continuation plan was in violation of the collateral source rule. Though ten cases are cited for this proposition, none even addresses the issue as stated in plaintiff's brief. The most recent Michigan case of Canning v. Hannaford, 373 Mich. 41, 127 N.W.2d 851 (1964), lends no support to plaintiff's contention that reference to collateral sources of benefits for all purposes must be excluded.

Reference to collateral sources of compensation is admissible in several jurisdictions under certain conditions. Evidence which has a bearing on one's incentive to return to work has been ruled admissible. In McElwain v. Capotosto, 332 Mass. 1, 2, 122 N.E.2d 901, 902 (1954), an objection was raised to testimony revealed during cross examination which established that plaintiff would be paid for the time he was absent from work. The Supreme Court agreed that this testimony could not be admitted in mitigation of damages, but affirmed the exercise of discretion by the trial judge in admitting the testimony on different grounds.

'We think the judge meant that the line of questioning had some bearing on the issue whether the plaintiff's absence from work was really due to an injury received at the time of the accident or was caused or prolonged by the fact that he would be paid if he did not work, even though the sum paid him would not reduce the recoverable damages for any period of disability actually due to the accident.'

Plaintiff contends the effect of McElwain has been emasculated by West v. Molders Foundry Co, Inc, 342 Mass. 8, 171 N.E.2d 860 (1961). This contention is misplaced. The portion of West quoted in plaintiff's reply brief represents two isolated paragraphs which appear out of context. While the court did overrule defendant's objection to the exclusion of evidence of workmen's compensation received by plaintiff, no reference was made as to whether plaintiff's absence from work was prolonged by the fact that payments to him were continued during this period. The court further distinguished West from McElwain in stating the former to be a matter of pleading while the latter represents a question of evidence on the issue of damages.

Evidence of payments made to an injured employee by an employer during a period of absence due to injuries is not prejudicial error where jurors heeded instructions that no deduction was to be made for wages that may have been lost to an employee during this period. Boone v. Brown, 12 Md.App. 619, 280 A.2d 51 (1971). The instructions given the jury in the instant case were...