Kellom v. City of Ecorse
| Decision Date | 08 January 1951 |
| Docket Number | No. 48,48 |
| Citation | 45 N.W.2d 293,329 Mich. 303 |
| Parties | KELLOM v. CITY OF ECORSE. |
| Court | Michigan Supreme Court |
H. Donald Bruce, Lansing, for appellant.
Earl E. Montie, Ecorse, for cross appellant.
Before the Entire Bench.
Plaintiff sued the defendant city of Ecorse for damages resulting from an explosion of gas, alleged to have been caused by the negligence of the defendant in failing to maintain a sewer in a condition of reasonable repair, and in failing to investigate a continuous depression in a street intersection to discover a broken sewer and gas main under the street. Escaping gas had accumulated through the broken sewer and exploded in plaintiff's building destroying the building and contents, burning and seriously injuring the plaintiff.
On jury trial plaintiff had verdict for $35,000 damages and judgment was entered accordingly, with costs. Thereupon the defendant filed a motion for an order setting aside the verdict and judgment and for a new trial. One of the grounds alleged in the motion was that the verdict and judgment were excessive. The court did not abuse its discretion in denying the motion for new trial unless we find otherwise on the question of an excessive verdict, hereinafter discussed. The granting or denying of a new trial rests in the sound discretion of the court and will not be overruled in the absence of an abuse of discretion. Rubenstein v. Purcell, 276 Mich. 433, 267 N.W. 646; Marion v. Savin, 315 Mich. 448, 24 N.W.2d 100.
The motion did not ask for a reduction in the amount of the verdict and judgment. However, at the hearing in open court on the motion, counsel for the defendant asked the court to 'reduce the verdict and judgment to one that would be equitable.' Without any further showing, the court entered an order which denied the motion for a new trial, but at the same time ordered that the verdict and judgment be reduced to $10,000, without costs, and without attorney fees. Plaintiff was not given the opportunity of deciding whether to consent to a remittitur of $25,000 from the amount of the verdict and judgment as an alternative to the granting of a new trial. The order entered by the court did not grant a new trial unless plaintiff should consent to a remittitur of $25,000, on the ground that the verdict was excessive. A new trial was denied.
At the time of said hearing, the defendant tendered to plaintiff's counsel, in court, a check of the defendant city for $10,000, payable to the plaintiff and his three attorneys, naming them. The plaintiff, in open court, refused to accept the payment, saying: 'It is not satisfactory to me.' Shortly afterward plaintiff's thenattorney, Joseph A. Craigen, filed a petition in the court, on behalf of himself and the two other former attorneys for the plaintiff, asking for authority 'to endorse the name of Joseph Kellom on a check in the amount of $10,000 so that same may be cashed and the attorneys be paid.' Thereupon the circuit judge entered an order authorizing Attorney Joseph A. Craigen to sign plaintiff's name on the check and cash it, and ordering that the balance of the check after deducting attorney fees be paid to the county clerk, to be paid over to plaintiff on demand.
Subsequently plaintiff, refusing to accept the tender, procured an order for substitution of another attorney to represent him on appeal, and perfected the instant appeal to this Court. The substantial question here is whether the trial court, under these circumstances, had authority to reduce the verdict and judgment to $10,000 and compel the plaintiff to accept the reduced amount by authorizing his then-attorney to indorse the check and deposit in court the money remaining after payment of attorney fees.
Notwithstanding the fact that the court had denied defendant's motion for a new trial on the ground, among others, that the verdict (and judgment) were excessive, the court in effect attempted to reduce the same to $10,000 and compel the plaintiff to accept a portion of that sum after the attorneys had taken out their claims for fees. We conclude that the orders reducing the verdict and judgment, and authorizing the attorney to sign plaintiff's name to the check, were not binding on the plaintiff and must be set aside as between the plaintiff and the defendant. However, we conclude that in one respect the verdict was excessive.
There was proof of pain and suffering as a result of the injuries, probable shortening of plaintiff's life expectancy, loss of earning power for 3 years, and inability to return to his former work as a plasterer's helper. The actual losses for destruction of building, merchandise and other personal property was shown to be approximately $10,000. Plaintiff's total claim of damages exceeded $43,000. However, plaintiff's bill of particulars included in that amount a claim for $30,000 for total and permanent disability and total loss of future earning power. While there was evidence of present disabling conditions as a result of plaintiff's injuries, there is an absence of proof to amount to a reasonable certainty that as a result of the injuries plaintiff has suffered a loss of all future earning power. There was some proof to the contrary.
'It is the generally accepted rule that to entitle a plaintiff to recover damages presently for apprehended future consequences of an injury there must be such a degree of probability of such consequences as to amount to reasonable certainty that they will result from the original injury.' Brinin-stool v. Michigan United Railways Co., 157 Mich. 172, 121 N.W. 728, 731.
The above case was cited with approval in Re Boyer's Estate, 282 Mich. 552, 276 N.W. 552, 554, in which case the Court said: 'The...
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Precopio v. City of Detroit, Dept. of Transp.
...physical problems and pain resulting from the prior accident had subsided before the 1972 accident.18 See Kellom v. City of Ecorse, 329 Mich. 303, 307-308, 45 N.W.2d 293 (1951); Gilson v. Bronkhorst, 353 Mich. 148, 153-154, 90 N.W.2d 701 (1958); Clissold v. St. Louis-San Francisco R. Co., 6......
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...pursuant to MCR 2.611(E), or, should the court decide to grant a new trial, for a trial on damages only. Kellom v. Ecorse, 329 Mich. 303, 310, 45 N.W.2d 293 (1951) ("If a retrial is had, each party may present testimony limited to such question of Reversed and remanded for proceedings consi......
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May v. William Beaumont Hosp.
...of just compensation based upon the evidence. Precopio v. Detroit, 415 Mich. 457, 470, 330 N.W.2d 802 (1982); Kellom v. City of Ecorse, 329 Mich. 303, 308, 45 N.W.2d 293 (1951). An appellate court reviewing a personal injury award should decide each case by its own facts. Yet, since no trie......
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Gowdy v. United States, 4897.
...injured. The plaintiff has established a reasonable degree of probability that future damages will occur. Kellom v. City of Ecorse, 329 Mich. 303, 45 N.W.2d 293 (1951); In re Boyer's Estate, 282 Mich. 552, 276 N.W. 552 (1937), approving Brininstool v. Michigan United Ry. Co., 157 Mich. 172,......