McAuliff v. Gabriel, Docket No. 9539

• Decision Date: 22 June 1971
• Docket Number: Docket No. 9539,No. 2,2
• Citation: 191 N.W.2d 128,34 Mich.App. 344
• Parties: Charlie Wayne McAULIFF and Evelyn McAuliff, Plaintiffs-Appellants, v. Dominic GABRIEL and Albert Gabriel, d/b/a Gabriel Lounge, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 128

191 N.W.2d 128

34 Mich.App. 344

Charlie Wayne McAULIFF and Evelyn McAuliff, Plaintiffs-Appellants, v. Dominic GABRIEL and Albert Gabriel, d/b/a Gabriel Lounge,

Defendants-Appellees.

Docket No. 9539.

Court of Appeals of Michigan, Division No. 2.

June 22, 1971.

Leave to Appeal Denied Sept. 2, 1971.

Released for Publication Nov. 3, 1971.

James R. Barson, Alspector, Sosin, Mittenthal & Barson, P.C., Detroit, for plaintiffs-appellants.

Sullivan, Sullivan, Ranger & Ward, Detroit, for defendants-appellees.

Before McGREGOR, P.J., and BRONSON and O'HARA, ^* JJ.

O'HARA, Judge.

In this 'slip and fall' case, the plaintiff ¹ filed timely notice of appeal from the jury verdict of no cause of action and from the order denying plaintiff's motion for a new trial.

Plaintiff was an employee of Ford Motor Company. On the night of February 4, 1967, he and several of his co-workers held an informal union meeting regarding proposals that would subsequently be submitted to their employer during contract negotiations. The plaintiff arrived at the lounge designated as the meeting place around 9 p.m. * * * Because of the noise which allegedly interfered with their attempted discussion, the plaintiff and several members of the group finally moved to another bar. Eventually, the entourage came to the third stop on their tour, the defendants' establishment known as the Gabriel Lounge. There, they observed a sign indicating that customers should enter by the rear door. Following these directions the men proceeded to the rear of the building via the adjacent sidewalk and entered the premises in this manner. None of the group experienced any difficulty in walking or otherwise maintaining their footing at this time. The meeting continued until the 'last call' of the evening at approximately 1:20 a.m. Accompanied by other of his fellow unionists, the plaintiff left the lounge via the rear exit, slipped and fell.

Taken to Mount Clemens General Hospital, plaintiff was administered to for a trimalleolar fracture of the left ankle and other injuries. During the course of treatment, he developed a staphyloccus infection in the ankle and osteomyelitis. As a result, he has undergone several operations and it may prove necessary to amputate the plaintiff's leg.

First, allegations are made that the trial court erred reversibly in denying plaintiff's motion to consolidate the instant case and the pending malpractice action arising out of his hospitalization.

Consolidation rests in the sound discretion of the trial court and its actions in this regard are subject to reversal only if an abuse of discretion clearly appears. Kelley v. Frank D. McKay Realty Company (1971), 34 Mich.App. ---, 191 N.W.2d 124, Under the circumstances herein, we are constrained to agree with the trial court that joinder of the two actions would unduly complicate matters by interjecting issues not germane to the other cause. Nor is there any real likelihood that plaintiff's interests would be prejudicially affected since the malpractice action does not turn upon the outcome of the instant case. We are unable to discern any abuse of discretion on the part of the trial court.

Plaintiff next assigns as error the allegedly improper action of the trial court in permitting the jury to become aware of the impending malpractice action against the treating physicians at the hospital.

Allowing defense counsel to elicit the fact that plaintiff had commenced a malpractice action against the doctors arising out of thier ministrations to him finds ready explanation in the not unrealistic belief of the trial judge that the jury, as finder of fact, should be fully informed about the circumstances relating to the injury. Normally, as noted by the trial court, pain and suffering of the magnitude herein are not associated with a broken ankle. Absent some explanation of the apparent inconsistency between the serious injury actually incurred by the plaintiff and the comparatively minor difficulties usually associated with seemingly comparable mishaps, the jury could not really evaluate testimony concerning the alleged injury.

Lest the jury be misled as to the limited purposes for which such testimony was admitted, the trial court instructed the jury, as follows:

'There has been some testimony regarding pendency of a malpractice action by the plaintiff. That would relate to a position that perhaps the original injury was worsened or there was a failure to cure. That has nothing to do with this litigation here. That is not to be considered in mitigation whether or not there are or are not damages or what the damages are. Its a rule of law that the original tortfeasor is liable for the consequences of a negligent mistake or lack of skill on the part of a physician or surgeon which treated the original injury. I am not saying that there was or was not negligence or a lack of skill here. That is for your determination.' (Emphasis supplied.)

An examination of the instruction indicates that it amply comports with the jurisprudence of this state as enunciated in Reed v. City of Detroit (1896), 108 Mich. 224, 225, 65 N.W. 967:

'* * * where a person sustains personal injury through the negligence of another, he is not to be deprived of his full damages because of the failure of his surgeon to administer the best remedies or treatment. There is no obligation to employ the best medical or surgical skill. (citation omitted). It is sufficient if one employs a physician believed to be competent, and reasonable care is used in the selection (citation omitted).'

Any assignments of error based upon the alleged impropriety of the jury's acquiring knowledge of the pending malpractice cause could only relate to the belief that the finders of fact willfully ignored the controlling law...