De Groff v. Clark, 3

• Decision Date: 04 January 1960
• Docket Number: No. 3,3
• Citation: 358 Mich. 274,100 N.W.2d 214
• Parties: Edward DE GROFF, Plaintiff and Appellee, v. Louis R. CLARK and Miller Plating Corporation, a Michigan corporation, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 214

100 N.W.2d 214

358 Mich. 274

Edward DE GROFF, Plaintiff and Appellee, v. Louis R. CLARK and Miller Plating Corporation, a Michigan corporation, Defendants and Appellants.

No. 3.

Supreme Court of Michigan.

Jan. 4, 1960.

McKone, Badgley, Domke & Line, Jackson, for appellants.

Albert J. Rapp, Ann Arbor, for appellee.

Before the Entire Bench, except SMITH, J.

DETHMERS, Chief Justice.

Plaintiff sued for damages resulting from personal injuries sustained in an automobile accident. Defendants admitted liability, leaving the amount of damages the sole issue to be tried. The jury returned a $50,000 verdict for plaintiff. Defendants' motion for new trial was denied and they appeal here.

Defendants urge (1) that the verdict was excessive, (2) that it was contrary to the great weight of the evidence, (3) that it was error for the court, at the request and prompting of counsel for plaintiff, to inquire on the voir dire whether any of the jury were officers, employees or stockholders in any stock company or members of any mutual insurance company, (4) that the court erred in refusing to instruct that plaintiff's failure to call physicians who had treated or examined him and who were no shown to be unavailable as witnesses created a presumption that their testimony would have been adverse to him, and (5) that it was error for the court, after imforming counsel that he would instruct that the jury might consider the plaintiff's failure to call such doctors and permitting defendants' counsel to argue that subject to the jury, then to instruct the jury that they should ignore such argument of counsel and to refuse to instruct as stated.

While there is quibbling about it, we are satisfied from the record that counsel for plaintiff had been advised prior to trial as to the name of defendants' insurer and that it was a stock company, and that, therefore, there was no question in counsel's mind at time of trial of a mutual insurance company of which some one of the jurors might be a member. It is evident that plaintiff's counsel requested and induced the court to direct the insurance question to the jurors, not for the purpose of eliciting information from them touching on their qualifications to sit as jurors, but for the purpose of conveying information to them about the existence of insurance in the case and influencing them thereby. The size of the verdict against the background of the record in this case would indicate that it did influence them. There is no need to review the law and previous decisions of this Court on the subject. Enough was said by Mr. Justice Black in Darr v. Buckley, 355 Mich. 392, 94 N.W.2d 837. See, also, Holman v. Cole, 242 Mich. 402, 218 N.W. 795, and Palazzolo v. Sackett, 245 Mich. 97, 222 N.W. 83. Decision therein is conclusive of a holding of reversible error here.

Plaintiff introduced the testimony of two doctors concerning his injuries and physical condition. Two other doctors treated or examined him both before and after the accident. Plaintiff did not call them as witnesses. Their testimony would have been pertinent to the question of plaintiff's injuries, his statements concerning the same, and, consequently, his damages. They were not shown to have been unavailable to plaintiff as witnesses. Defendants requested an instruction that plaintiff's failure to call them created a presumption that if they were called their testimony would be adverse to plaintiff. The court refused to give this instruction. Defendants claim error, relying on Cooley v. Foltz, 85 Mich. 47, 48 N.W. 176; Vergin v. City of Saginaw, 125 Mich. 499, 84 N.W. 1075, and Griggs v. Saginaw & Flint Railway Co., 196 Mich. 258, 162 N.W. 960, 962. These cases lend support to defendants' contention. Note should be taken, however, of the statement in the opinion in Griggs, concerning plaintiff's doctor, that: 'His testimony was...