Cooper v. Christensen, Docket No. 8070

• Decision Date: 10 December 1970
• Docket Number: Docket No. 8070,No. 1,1
• Citation: 185 N.W.2d 97,29 Mich.App. 181
• Parties: Larry COOPER, Plaintiff-Appellant, v. Askell CHRISTENSEN d/b/a A & C Drive-In, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 97

185 N.W.2d 97

29 Mich.App. 181

Larry COOPER, Plaintiff-Appellant, v. Askell CHRISTENSEN d/b/a A & C Drive-In, Defendant-Appellee.

Docket No. 8070.

Court of Appeals of Michigan, Division No. 1.

Dec. 10, 1970.

Released for Publication April 2, 1971.

Albert Lopatin, Detroit, for plaintiff-appellant (Theodore M. Rosenberg, Detroit, of counsel).

Johnson, Campbell & Moesta, Detroit, for defendant-appellee.

Before HOLBROOK, P.J., and R. B. BURNS and O'HARA ^*, JJ.

R. B. BURNS, Judge.

In October of 1963, plaintiff was attacked at defendant's drive-in by a group of youths. Resulting injuries to his left ankle required hospitalization and surgery. For six months plaintiff wore a non-walking cast which was removed in late March, 1964. At the time of the attack plaintiff was employed by the Sampson-Hill Corporation. He never returned to work for them. He had filed an application with the Ford Motor Company prior to the assault and Ford called him to work on April 1, 1964. He reported immediately and engaged in heavy physical labor, which he was able to perform regularly from then on. Plaintiff received no medical treatment after April 1st.

The medical records librarian for Wayne County General Hospital testified that plaintiff's medical treatment, excluding doctors' fees cost $1,139.25. No evidence regarding doctors' fees was submitted.

The chief accountant for the Sampson-Hill Corporation testified that plaintiff was on sick leave from October 14, 1963, until April 3, 1964, during which time he lost $1,980.30 in wages.

Plaintiff testified regarding his injury, hospitalization, surgery, pain and suffering, and wearing of a non-walking cast. There was no evidence of complications or permanent disability. Over counsel's objection, plaintiff testified on cross-examination to the receipt of $1,037.94 from his assailants.

The trial court gave the jury the following instruction:

'And I also charge you that the plaintiff has received a sum, according to the testimony, of $1,037.94 from the three boys that committed the assault. And therefore, if you should find the defendant liable, you must deduct the sum of $1,037.94 from the amount of damages you find the plaintiff has proven.'

The jury awarded plaintiff $675.00. Plaintiff appeals the denial of his motion for a new trial. He claims that the court below erred in allowing the jury to deduct the sum paid by his assailants from any damages, and that the award was grossly inadequate.

The consideration received by one injured as a consequence of a tort committed by two or more tortfeasors operates to reduce, Pro tanto, the amount of damages he is entitled to recover against any other tortfeasor responsible for his injuries, and this is so whether the tortfeasors are joint or independent. M.C.L.A. § 600.2925(2) (Stat.Ann.1962 Rev. § 27A.2925(2)). Larabell v. Schuknecht (1944), 308 Mich. 419, 14 N.W.2d 50. Thus, the trial court did not err in allowing the jury to reduce plaintiff's damages by the sum previously paid by the youthful assailants.

Nevertheless, uncontroverted testimony was before the jury establishing plaintiff's damages at $2,081.61. ¹

A jury award which ignores uncontroverted out-of-pocket expenses is inadequate on its face. Hugener v. Michlap (1966), 2 Mich.App. 157, 139 N.W.2d 132; Whitson v. Whiteley Poultry Co. (1968), 11 Mich.App. 598, 162 N.W.2d 102. So too, an award which ignores pain and suffering is also inadequate. Fordon v. Bender (1961), 363 Mich. 124, 108 N.W.2d 896.

The award in this case was substantially less than the established special...