Gibeault v. City of Highland Park

• Decision Date: 27 September 1973
• Docket Number: Docket No. 15298,No. 1,1
• Citation: 49 Mich.App. 736,212 N.W.2d 818
• Parties: Gean GIBEAULT, Plaintiff-Appellee, v. CITY OF HIGHLAND PARK, a municipal corporation, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 818

212 N.W.2d 818

49 Mich.App. 736

Gean GIBEAULT, Plaintiff-Appellee, v. CITY OF HIGHLAND PARK, a municipal corporation, Defendant-Appellant.

Docket No. 15298.

Court of Appeals of Michigan, Division No. 1.

Sept. 27, 1973.

Rehearing Denied Nov. 30, 1973.

Released for Publication Dec. 19, 1973.

Ralph A. Modad, Goodman, Modad, Teschendorf & Bell, P.C., Highland Park, for defendant-appellant.

Gerald F. Lindeborg, Kutinsky & Lindeborg, Madison Heights, for plaintiff-appellee.

Before J. H. GILLIS, P.J., and V. J. BRENNAN and WALSH,* JJ.

WALSH, Judge.

Plaintiff instituted this action for damages due to an alleged assault and battery committed upon his person on April 28, 1968, at the Highland Park police headquarters by four of defendant's police officers. Plaintiff alleged in his complaint that as a result of this attack he was bruised and injured in and about his head and genitals. Plaintiff further claimed that he had endured great gain and suffering which had necessitated and would further necessitate medical treatment for alleviation of the injuries and suffering. Plaintiff's Ad damnum clause sought actual damages of $10,000 and exemplary damages of $100,000.

The case was tried before a judge sitting without a jury. Plaintiff and a man who was his companion at the time of plaintiff's arrest alleged that defendant's police had beaten plaintiff after he was taken into custody following a high-speed automobile chase. Defendant's police officers testified that plaintiff was not beaten. The trial court, after making findings of fact, specifically stated that it did not believe the police officers and that plaintiff's testimony 'rang true' and was corroborated in its essentials by the testimony of plaintff's companion. The court then awarded actual damages in the amount of $30,000. The court declined, however, to award exemplary damages, reasoning that it would not be beneficial to impose the burden of exemplary damages upon the defendant city for improper conduct on the part of its employees.

Immediately following the court's decision, plaintiff moved to amend the Ad damnum clause to correspond with the court's award of actual damages. Defendant objected, but the court allowed it.

Subsequently, a hearing was held on defendant's motion for Remittitur to $10,000 or, in the alternative, for a new trial. The motion was denied. Defendant has appealed raising two questions pertaining to the amount of damages.

First, defendant contends that the trial court was without authority to award a greater amount of actual damages than plaintiff requested in his Ad damnum clause. As noted Supra, plaintiff asked for only $10,000 in actual damages but was awarded $30,000 by the trial court.

The key to resolution of this issue is contained in the language of GCR 1963, 518.3 which provides:

'Demand for Judgment. A judgment by default shall not be different in kind from, or exceed in amount, that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even the party has not demanded such relief in his pleadings.'

The language of GCR 1963, 518.3 is identical to that of F.R.Civ.P., 54(c). The federal courts have interpreted the rule in such a manner as to countenance an award of damages in excess of those the claimant requested in his pleadings. See for example, Southwestern Investment Co. v. Cactus Motor Co., 355 F.2d 674 (C.A.10, 1966); Brown v. Burr-Brown Research Corp., 378 F.2d 822 (C.A.5, 1967).

Also, the authors of 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p. 632, in commenting upon GCR 1963, 518.3 state:

'In former Michigan practice it was said a judgment could not exceed the amount requested in the Ad damnum clause, although in practice the problem might have been side stepped (sic) by permitting an amendment to conform the pleadings to the proofs. * * * The new rule makes it clear that except upon default judgment, the court has power to enter judgment in an amount greater than that demanded, if proved.'

At first blush, the case of Phillips v. Rolston, 376 Mich. 264, 167 N.W.2d 158 (1965), might appear to mandate a holding to the effect that an award of damages cannot exceed the amount prayed for by a party in his complaint. In Phillips the question was whether the Ad damnum clause could be amended in order to conform with the jury's award of damages. The trial court had allowed the amendment but had also granted defendant's motion for a new trial unless the plaintiff would agree to remit the amount by which the jury award exceeded the amount asked for in the original Ad damnum clause. The plaintiff consented to the Remittitur but the defendants appealed nonetheless. The Supreme Court concluded that the amendment of the Ad damnum proofs were sufficient to support the amount after Remittitur and so the case was affirmed. The Court spoke at length on the proposition of amending the Ad damnum clause after verdict and disapproved such an amendment, stating:

'To allow the amendment of an Ad damnum to conform with a jury's verdict in an amount in excess of the amount claimed would prejudicially and adversely affect the substantial right of the party against whom the award was made to defend against the award to the extent it was in excess of the Ad damnum.

'While it may be true that the Ad damnum not infrequently is grossly exaggerated, nonetheless it serves to limit the amount of the defendant's maximum potential liability. Such limitation, as gross as it sometimes is, may well be pertinent to the trial strategy adopted by a defendant. For example, a defendant might be willing to concede liability provided damages to be awarded by the jury are limited to a specified amount. The Ad damnum serves this function, at the very least. Conceivably, a defense counsel engaged by an insurance company to represent its insured might be willing to concede liability within the policy limits but not beyond. If the Ad damnum is within those limits, and if it effectively limits the defendant's potential liability by jury verdict, such concession of liability might well be made whereas no skilled attorney would so much as consider such a concession if the extent of liability were in practical fact not limited by the Ad damnum.' 376 Mich. 264, at 268--269, 137 N.W.2d 158, at 160.

For some reason unbeknownst to us, the Court did not make any reference whatsoever to GCR 1963, 518.3. It is precisely rule 518.3 which persuades us that an award in excess of the damages prayed for in an Ad damnum clause may be sustained. While we will not speculate as to the possible reasons why the Supreme Court did not allude to GCR 1963, 518.3, we do conclude that the existence of this rule justifies our distinguishing the case of Phillips v. Rolston, Supra, from the instant one.

We are persuaded by the thoughtful analysis of GCR 1963, 518.3 by Judge R. B. Burns in Piatkowski v. Mok, 29 Mich.App. 426, 185 N.W.2d 413 (1971). There it was stated:

'The language of 518.3, in no uncertain terms, states that a judgment must be based on what...