Ray v. City of Detroit, Dept. of St. Railways

• Decision Date: 09 March 1976
• Docket Number: Docket No. 23596
• Citation: 67 Mich.App. 702,242 N.W.2d 494
• Parties: Sharon RAY, Plaintiff-Appellee, v. CITY OF DETROIT, DEPARTMENT OF STREET RAILWAYS, a Municipal Corporation, and Claude Ballard, jointly and severally, Defendants-Appellants. 67 Mich.App. 702, 242 N.W.2d 494
• Court: Court of Appeal of Michigan — District of US

Page 494

242 N.W.2d 494

Sharon RAY, Plaintiff-Appellee, v. CITY OF DETROIT, DEPARTMENT OF STREET RAILWAYS, a Municipal Corporation, and Claude Ballard, jointly and severally, Defendants-Appellants.

Docket No. 23596.

67 Mich.App. 702, 242 N.W.2d 494

Court of Appeals of Michigan.

March 9, 1976.

Released for Publication June 8, 1976.

[67 MICHAPP 703] Douglas L. Stenzel, Asst. Corp. Counsel, Detroit, for defendants-appellants.

A. D. Rosati, Detroit, for plaintiff-appellee.

Before QUINN, P.J., and D. E. HOLBROOK and WALSH, JJ.

WALSH, Judge.

This is an appeal from a judgment of the Wayne County Circuit Court in favor of the plaintiff. The case arose from the September 9, 1970, assault and battery of the plaintiff by the defendant bus driver in the City of Detroit. At the conclusion of the trial the judge, sitting without a jury, found that the plaintiff had incurred certain 'out of pocket' expenses as result of defendant's tortious conduct and that she was entitled to 'permanent residual' damages, due to long-term effects associated with the dental caps placed on her teeth and that she should recover damages for 'pain and suffering' inasmuch as the plaintiff underwent root canal oral surgery. These damages were characterized by the judge as 'actual damages' and he awarded $5,000 therefor. In addition $2,500 was given to the plaintiff as 'exemplary damages for humiliation, sense of outrage and [67 MICHAPP 704] indignity resulting from this action'. The defendants were held jointly and severally liable; the City of Detroit, Department of Street Railways, appeals as of right only from the award of exemplary damages. Liability is admitted.

The issue before this court is whether a municipal corporation can be held liable for exemplary damages awarded for injuries sustained as the result of the intentional tortious conduct of its employee. Essential to our resolution of this issue is an understanding of the nature of exemplary damages under Michigan law.

The terms 'exemplary' damages, 'punitive' damages and 'vindictive' damages have frequently been confused or used interchangeably. However, in Michigan only exemplary damages which are compensatory in nature are allowable. They are recoverable for injury to feelings and for the sense of indignity and humiliation resulting from injury maliciously and wantonly inflicted. Recovery is restricted to the party who has received the physical injury. They are never allowed, however, for the purpose of punishing or making an example of a defendant. Smith v. Jones, 382 Mich. 176, 169 N.W.2d 308 (1969) (concurring opinion of Justice Adams); Ross v. Leggett, 61 Mich. 445, 28 N.W. 695 (1886); McFadden v. Tate, 350 Mich. 84, 85 N.W.2d 181 (1957); Detroit Daily Post Co. v. McArthur, 16 Mich. 447 (1868); Hyatt v. Adams,16 Mich. 180 (1867).

Although in many cases Michigan courts have attempted to distinguish between 'actual' damages and 'exemplary' damages (see for example, Ross v. Leggett, supra), it seems obvious that since exemplary damages must be compensatory in nature, and not punitive, they are in effect but another item of 'actual' damage. As stated above [67 MICHAPP 705] they are not awarded by way of example although they may be called exemplary. They are not awarded by way of punishment although they may be called punitive. They are recoverable only for injury Actually sustained by a party although that injury is to the feelings rather than physical in nature. In the early case of Welch v. Ware, 32 Mich. 77 (1875), the Court said:

'When the law gives an action for willful wrongs, it does it on the ground that the injured person ought to receive pecuniary amends from the wrong-doer. It assumes that every such wrong brings damage upon the sufferer, and that the principal damage is mental, and not physical. And it assumes further that this is Actual, and not metaphysical damage, and deserves compensation.' (Emphasis added.)

And in Scripps v. Reilly, 38 Mich. 10 (1878), the court set forth a summary of rules relating to damages which included the following:

'5. Where, however, the elements exist in a case, entitling a party to recover damages for injured feelings, the amount to be allowed for shame, mental anxiety, insulted honor, and suffering and indignation consequent on the wrong, may be increased or aggravated by the vindictive feelings, or the degree of malice, recklessness, gross carelessness or negligence of the defendant, as the injury is much more serious where these elements, or either of them, are shown to have existed.

'6. This increase of damages dependent upon the conduct of the defendant Must be considered in this State as actual damages, although usually spoken of as exemplary, vindictive or punitory * * *.' (Emphasis added.)

Defendant argues that since the municipal corporation is not itself guilty of any malice or recklessness[67 MICHAPP 706] it should not be liable for exemplary damages. In light of the nature of exemplary damages allowable in this state defendant's argument is unpersuasive.

Under the doctrine of Resp...