Riggs v. Szymanski

• Decision Date: 22 July 1975
• Docket Number: Docket No. 20543
• Parties: Mary RIGGS, Plaintiff-Appellee, v. Dale SZYMANSKI and Stanley Szymanski, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 670

233 N.W.2d 670

62 Mich.App. 610

Mary RIGGS, Plaintiff-Appellee, v. Dale SZYMANSKI and Stanley Szymanski, Defendants-Appellants.

Docket No. 20543.

Court of Appeals of Michigan.

July 22, 1975.

Released for Publication Oct. 21, 1975.

Garan, Lucow, Miller, Lehman, Seward & Cooper, P.C. by Millard W. H. Becker, Jr., Detroit, for defendants-appellants.

Jerome J. Krasa, Madison Heights, for plaintiff-appellee.

Before T. M. BURNS, P.J., and CAVANAGH and O'HARA, ^* JJ.

O'HARA, Judge.

We write to a question of first impression. The case was submitted on a certified concise statement of facts and proceedings. It is five 12 1/2-inch-long pages.

Reference may be had thereto by those desirous of more background than we shall include in our opinion.

In brief what happened is that both plaintiff's and defendant's ¹ automobiles were stopped at a traffic light. The plaintiff says defendant bumped into her car from the rear. Defendant says plaintiff's vehicle rolled backwards into his.

The only ascertainable damage was a dent 'around the keyhole of plaintiff's trunk'. The contact took place December 14, 1969. This damage was testified to by both plaintiff and defendant-driver and verified by a photograph. Plaintiff 'sought treatment' by a doctor. He was not called as a witness at trial.

Suit was started November 30, 1970 in the Oakland County Circuit Court. It was assigned for trial June 19, 1972. The trial judge removed the case to the 43rd Judicial District Court to 'expedite the trial and disposition of the action.' ² A jury trial in that court took place January 9, 1973. The jury brought in the following verdict 'It's a unanimous decision that the defendant is negligent and there is no cause for action.'

The district judge then addressed the foreman who had announced the verdict:

'THE COURT: Well, can you explain that a little bit more? In other words, you found that the defendant is negligent. Is that correct, Mr. Hocking?

'MR. HOCKING: Yes, sir.

'THE COURT: And _ _ but even though the defendant is negligent, you find that the damages do not flow from this negligence. Is that my understanding?

'MR. HOCKING: That's _ _ that is right, sir. The minor damage results of the picture we see and the description of the accident scene does not warrant any compensensory (sic) settlement.'

Nothing took place thereafter until on or about September 19, 1973. On or about that date plaintiff filed a motion in the Oakland County Circuit Court for leave to appeal. Defendant's responsive pleading, according to the stipulated statement, raised the following issues:

'(1) that plaintiff's motion for leave to appeal was filed in the wrong court in that it should have been filed in the Court of Appeals rather than the Oakland County Circuit Court; (2) that plaintiff does not have a meritorious claim upon which relied can be granted; (3) that plaintiff's motion for leave to appeal was not timely filed and plaintiff gave no valid basis for which the court could exercise its sound discretion in granting plaintiff's motion; and (4) that the granting of plaintiff's motion would work a great injustice and hardship to the defendants in this matter due to the trial, proceedings, post-trial proceedings and the length of time which transpired since the entry of the order denying plaintiff's motion for judgment notwithstanding the verdict or, alternatively, for new trial as to damages only.'

In addition to the foregoing excerpt the stipulated statement contained this excerpt:

'The motion of the plaintiff For delayed appeal only was argued before the Honorable William John Beer of the Oakland County Circuit Court on September 26, 1973 with the court taking the matter under advisement. Thereafter, on November 5, 1973, the court advised, without answering the jurisdictional questions raised and the untimeliness of the motion, that it had granted plaintiff's motion for leave to appeal and, summarily, without giving the defendants an opportunity to be heard on whether a new trial should be granted, ordered a new trial again to be held in the 43rd Judicial District Court, Hazel Park Division.' (Emphasis in original.)

The question of first impression to which we adverted in the opening sentence of this opinion is whether after removal by a circuit court to a district court of an action originally started in the circuit court, for the rule--quoted ³ reason 'to expedite the trial and disposition of the action', appeal from the final disposition in the district court is to the circuit court, where the action was started, or to the Court of Appeals.

We hold that either an appeal of right or a motion for delayed appeal must be filed and disposed of in the circuit court in which the action was started. ⁴

Our reason is that neither the statute ⁵ nor the court rule ⁶ suggests otherwise. ⁷ We cannot create our own jurisdiction. It is created by statute or court rule. ⁸ Our most diligent reading of both, neither explicitly, nor by reasonable implication, would justify the conclusion we have it. Thus we reason that the class of case at bar follows the established procedure of appeals from the district to the circuit court. ⁹

We now examine the action of the trial judge in setting aside the district court order denying a new trial, and ordering a new trial in the district court.

In this we think the circuit judge was in error and reversibly so.

Jury verdicts which find negligence on the part of a defendant but award no damages are not new to our jurisprudence. This has sometimes been known by its Latin version: 'Injuris absque' (or 'sine damno'). Generally it has been associated with the De minimis concept. In its simplest terms it merely means that there has been the invasion of another's rights, but that no damage, or minuscule damage, flowed from the wrongful act.

In this case there was no medical testimony relating to the injuries plaintiff allegedly sustained as a result of the minor collision. Neither was there any proof of the cost of repair of the minuscule dent in her vehicle.

Expressed another way the jury's verdict may be properly interpreted to mean that the jury found no proximate causation and hence no recovery, or no proof of any monetary loss upon which to base an award of damages.

The colloquy between the district judge and the foreman of the jury which we quoted earlier left no doubt as to the essence of the jury's verdict. The right of the trial judge to question the jury in open court to clarify what might be construed as an inconsistent verdict, but which in reality needs only clarification, is settled by Supreme Court precedent which binds us.

'There can be no doubt that where the intention of the jury is ascertainable the court may amend the verdict, correcting manifest errors of form, and sometimes matters of substance, to make it conform to the intention of the jury.' Rabior v. Kelley, 194 Mich. 107, 117, 160 N.W. 392, 395 (1916).

See also In re Sorter's Estate, 314 Mich. 488, 22 N.W.2d 767 (1946), Rathbone v. Detroit United Railway, 187 Mich. 586, 154 N.W. 143 (1915).

Thus we are left only with the propriety of the circuit judge granting the delayed motion for a new trial. Assuming Arguendo that there was no culpable negligence, at least which was imputable to plaintiff, it...