Fordon v. Bender, 48

• Decision Date: 26 April 1961
• Docket Number: No. 48,48
• Citation: 363 Mich. 124,108 N.W.2d 896
• Parties: Lee A. FORDON, Plaintiff and Appellant, v. Clom BENDER and Clemens Bender, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 896

108 N.W.2d 896

363 Mich. 124

Lee A. FORDON, Plaintiff and Appellant, v. Clom BENDER and Clemens Bender, Defendants and Appellees.

No. 48.

Supreme Court of Michigan.

April 26, 1961.

Markle & Markle, Detroit, for plaintiff and appellant.

Carl F. Davidson, Detroit, Kenneth S. Halsey, Detroit, of counsel, for defendants and appellees.

Before the Entire Bench.

SOURIS, Justice (for reversal and remand for new trial).

This lawsuit resulted from a rear end collision, plaintiff being the driver and owner of the front car involved. The questions of defendants' negligence and plaintiff's contributory negligence were removed from the jury's consideration by the trial judge, defendants having admitted liability in their opening statement. The sole issue before the jury was the amount of damages, if any, recoverable by plaintiff. In reporting the verdict the jury foreman said:

'We have decided to give the plaintiff $25 damages that he paid for his automobile, plus his hospital and X-rays which was another $200.'

In allowing plaintiff to recover for his special damages, the jury must necessarily have found that he suffered injuries proximately caused by defendants' negligence. The court properly instructed the jury with respect to its duty to award such special damages in the event it found that defendants proximately caused plaintiff's injuries. The court also properly charged that in that event plaintiff should be awarded, in addition, an 'amount that will compensate him as far as money can compensate him for the pain and suffering that he has endured * * *.' There was much disputed testimony relating to plaintiff's medical history and physical condition both prior and subsequent to the collision here involved. Defendants sought to prove that plaintiff's injuries had been caused by other events, principally athletic and body conditioning activities in which he engaged rather extensively, and, of course, plaintiff sought to prove his claim that the injuries were caused by defendants. The jury resolved the dispute in plaintiffs favor by its verdict, which included damages for plaintiff's medical expenses. The jury's verdict, however, manifests a disregard of the court's quoted instruction by its failure to award damages for pain and suffering. Once the jury resolved the causation dispute, the great weight of the evidence compelled it to award plaintiff damages for the pain and suffering which naturally followed such injuries found by the jury to have been proximately caused by defendants. The language of this Court in Weller v. Mancha, 353 Mich. 189, 195, 91 N.W.2d 352, 355, is applicable here:*

'* * * The jury verdict was for the exact amount of the stipulated special damages of the deceased. It is apparent that no consideration was given by the jury to the additional elements of the pain and suffering of the deceased and the future damages of widow and minor child, and, therefore, the damages awarded to plaintiff were overwhelmingly against the evidence, and, under the evidence, grossly inadequate.'

We deem it unnecessary to discuss other questions raised in this appeal, as they are unlikely to occur upon retrial.

Reversed and remanded for new trial. Costs to plaintiff.

SMITH, B...