Jackson v. Gregory

• Decision Date: 01 April 1971
• Docket Number: Docket No. 9611,No. 2,2
• Citation: 32 Mich.App. 301,188 N.W.2d 629
• Parties: Tim JACKSON and Dorothy Jackson, Plaintiffs-Appellants, v. Roy E. GREGORY, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 629

188 N.W.2d 629

32 Mich.App. 301

Tim JACKSON and Dorothy Jackson, Plaintiffs-Appellants, v. Roy E. GREGORY, Defendant-Appellee.

Docket No. 9611.

Court of Appeals of Michigan, Division No. 2.

April 1, 1971.

Rehearing Denied May 12, 1971.

Released for Publication July 13, 1971.

Albert H. Reifler, Pontiac, for plaintiffs-appellants, Frances R. Avadenka, Pontiac, of counsel.

Alexander McGarry, Bloomfield Hills, for defendant-appellee.

Before R. B. BURNS, P.J., and J. H. GILLIS and T. M. BURNS, JJ.

PER CURIAM.

Plaintiffs were back seat passengers in an accident which occurred on October 23, 1967. The jury determined that the drivers of both of the automobiles in the accident were negligent. Plaintiffs appeal, however, contending the verdict of the jury was, as to both plaintiffs, inadequate.

At the trial, plaintiff Dorothy Jackson proved that her out-of-pocket damages were $50.15. Tim Jackson's out-of-pocket expenses were at least $263.03. The jury returned a verdict of $29 for Dorothy Jackson and $136 for Tim Jackson. Plaintiffs contend the two awards are clearly inadequate since they do not even compensate plaintiffs for their out-of-pocket expenses.

A jury verdict may not ignore uncontroverted out-of-pocket expenses. Ross v. Richardson (1970), 29 Mich.App. 110, 185 N.W.2d 106. A jury verdict which does ignore such out-of-pocket expenses is inadequate and must be reversed:

'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.' ¹

Since the award in the instant case is less than plaintiffs' out-of-pocket expenses, the case must be reversed and remanded for a new trial as to damages only.

Plaintiffs also contend that the introduction of Tim Jackson's 'Employees Personal Record' kept by Mr. Jackson's employer (defendant's Exhibit A) and the record kept by the Medical Department of his employer (defendant's Exhibit B) was error in that certain matters contained therein were prejudicial.

Exhibit A was Mr. Jackson's foreman's record on Jackson which was made in the ordinary course of business. Exhibit B was an employee medical record on Tim Jackson. Both records contained numerous references to back trouble which Mr. Jackson had complained of. Since both records were made in the ordinary course of business, they should be admissible under the Business Records exception to the hearsay rule. M.C.L.A. § 600.2146 (Stat.Ann.1962 Rev. § 27A.2146).

Plaintiffs contend on appeal that the records prejudiced the jury against Mr. Jackson because they contained references to venereal disease and profane language. However, plaintiffs' objections below were based upon hearsay and irrelevance. Since the records were certainly...