Motts v. Mich. Cab Co.

• Decision Date: 31 January 1936
• Docket Number: No. 121.,121.
• Citation: 274 Mich. 437,264 N.W. 855
• Parties: MOTTS v. MICHIGAN CAB CO.
• Court: Michigan Supreme Court

274 Mich. 437

264 N.W. 855

MOTTS

v.MICHIGAN CAB CO.

No. 121.

Supreme Court of Michigan.

Jan. 31, 1936.

Action by Clyde E. Motts against the Michigan Cab Company. Judgment for plaintiff, and defendant appeals.

Affirmed.Appeal from Circuit Court, Kalamazoo County; George V. weimer, judge.

Argued before the Entire Bench.

Mason & Sharpe, of Kalamazoo, for appellant.

Fred A. Mills, of Kalamazoo, for appellee.

TOY, Justice.

Plaintiff brought this suit to recover damages for personal injuries which he sustained while riding as a passenger for hire in defendant's taxicab in the city of Kalamazoo, when such cab was struck by another cab of defendant.

At the trial below the defendant conceded that it was negligent in the operation of its taxicab and that plaintiff received his injuries by reason of that negligence. The case was submitted to the jury on the question of damages, and a verdict was returned fixing the damages at $1,500, followed by entry of judgment in that amount. After denial of defendant's motion for a new trial, it appealed.

Defendant here contends that the trial court was in error, first, in leaving to the jury in any way the question of future damages; second, in the instruction given the jury in that regard; third, in not instructing the jury, as requested by defendant, that there could be no recovery for plaintiff based on any claim of loss of earnings; fourth, that the damages awarded were excessive.

On the matter of claim for future damages, plaintiff alleged in his declaration that: ‘Plaintiff has not fully recovered from his said injuries herein complained of and still feels the effects of the same; Plaintiff's right arm and shoulder and collar bone at times causes him pain; Plaintiff's right arm is not yet normal in strength, and Plaintiff has to favor same, and at times Plaintiff suffers pain in his right shoulder and is unable to secure his proper sleep and rest by reason thereof, and this Plaintiff verily believes that said injuries may continue to cause him pain and suffering, and inconvenience for a long time hereafter.'

The record discloses testimony that plaintiff still has pains in his arm and shoulder and around his neck; that he cannot sleep; that he perspires violently without exertion; that he complains of marked exhaustion and shortness of breath; that he is ‘apt to have pain at intervals at least for some time yet’; that he ‘will continue to be nervous for some time’; and that his ‘nervousness would interfere with his future happiness and being able to do his work.’ In addition, plaintiff testified: ‘I was just physically fit before I got hurt. Since then, I haven't been any good. I was a strong and healthy man before this accident, take on any of you. I had never been sick.'

The accident occurred March 12, 1934. Trial was had December 11th of the same year. The trial court, in his opinion denying defendant's motion for a new trial, stated: ‘Upon the trial, * * * plaintiff was still in an unmistakable and pitiable condition of severe nervous shock. His appearance, his testimony and that of the medical witnesses left no room for doubt that he would continue to suffer from the effects of the accident for a considerable time thereafter, perhaps indefinitely. Plaintiff was then manifestly unable and unfit to pursue his regular vocation, or to enjoy normal living in any considerable measure.'

It seems plain to us that, under the allegations of plaintiff's declaration, as above quoted, and the testimony hereinbefore outlined regarding plaintiff's condition, together with his appearance at the time of the trial, as observed by the trial judge, the trial court was not in error in heaving to the jury the question of future damages.

Defendant contends that the trial court erred in its charge to the jury in respect to future damages. The court charged:

‘You should award him such an amount as you in your honest, candid judgment find will fairly and justly compensate him for all pain, suffering and shock that you find he has endured, and which, if any, you find he in all probability will endure in the future as a result of this accident.'

‘The burden of proof is upon the plaintiff, of course. He brings the action and he must satisfy you by a preponderance of the evidence as to the nature and character and extent of his pain and suffering.'

Defendant complains that the use, by the trial judge, of the term ‘in all probability’ in the portion of the charge above quoted, was error.

Counsel for both parties have evidently overlooked the holding of this court in the case of King v. Neller, 228 Mich. 15, 199 N.W. 674, 676, for it is not cited nor discussed in their briefs. In that case, exception had been taken to the charge of the trial court, which read: ‘If you believe from the evidence in the case that in all probability she [plaintiff] will in the future suffer pain, you may award her the present worth of such amount as will fairly and justly compensate her for this future pain and suffering.'

In sustaining such charge this court said: ‘The words ‘in all probability’ are criticized, and it is said that only such future damages can be recovered as the evidence makes reasonably certain will necessarily result from the injury sustained, that there must be reasonable certainty of future consequences of the injury as distinguished from reasonable probability, citing Matthews v. Lamberton, 184 Mich. 493, 151 N.W. 563;Brininstool v. Railways Co., 157 Mich. 172, 121 N.W. 728;Kethledge v. City of Petoskey, 179 Mich. 301, 146 N.W. 164; ‘In all probability’ means more than reasonable probability. It is equivalent to reasonable certainty. It describes the highest degree of probability. It has practically the same meaning as ‘in all likelihood,’ which has been held equivalent to reasonable certainty. Ballard v. Kansas City, 110 Mo.App. 391, 86 S.W. 479; 31 C.J. p. 363; 2 Words and Phrases, Second Series, p. 984.'

In the case of Coppinger v. Broderick, 37 Ariz. 473, 295 P. 780, 781, 81 A.L.R. 419, the court, after quoting with approval the above-quoted language of this court in King v. Neller, supra, further comments: ‘After all, in its final analysis the rule is but a monition to the jury. The common sense, experience, and conscience of the jury, if responsive, will guide it to the same, and whether it is told that it must be reasonably certain of future pain and suffering or satisfied that in all probability or likelihood future pain the suffering will ensue.'

We hold, therefore, that the trial court was not in error in giving the charge above referred to.

Defendant asks the question: Can there be recovery for loss of earnings in the case where an employer continues salary payments, under agreement with the employee to repay the employer in event of recovery?

The plaintiff testified:

‘* * * They (his Employers) told me they wouldn't pay me for the time I was off and then they revised that and said they would provided I would pay them back in case I was reimbursed.'

‘I was away from my work for six weeks. During that period of six weeks, my company continued to pay my regular salary. I had some verbal understanding with my company or someone connected with my company, that if I were permitted to recover these wages, I would pay them back to the company. I am paid at the rate of $40.00 per week and get my pay twice a month.'

The trial judge submitted the question of the right of plaintiff to recover for such earnings to the jury under his charge, as follows: ‘If his (plaintiff's) company paid him a salary for services rendered, if the plaintiff has received a salary from his company for services rendered, then he is not entitled to recover for lost earnings. There can be no recovery by plaintiff for lost earnings, or loss of earnings during the period of his disability, unless you find by a preponderance of the evidence that the salary payments made him by his employer and covering the period of his disability were gratuities, a mere gift. If his company, if his employer made payments to him as a pure gratuity, as a gift, then such payments would not bar the...