Riordan v. Gould Engineering, Inc.

• Decision Date: 28 March 1977
• Docket Number: Docket No. 24748
• Citation: Riordan v. Gould Engineering, Inc., 253 N.W.2d 736, 74 Mich.App. 292 (Mich. App. 1977)
• Parties: Lynn RIORDAN, Administratrix of the Estate of John Riordan, III, Deceased, Plaintiff-Appellee, v. GOULD ENGINEERING, INC., a Michigan Corporation, the Township of Grand Blanc, an unincorporated municipality, and the County of Genesee, jointly and severally, Defendants- Appellants. 74 Mich.App. 292, 253 N.W.2d 736
• Court: Court of Appeal of Michigan

Page 736

253 N.W.2d 736

Lynn RIORDAN, Administratrix of the Estate of John Riordan III, Deceased, Plaintiff-Appellee, v. GOULD ENGINEERING, INC., a Michigan Corporation, the Township of Grand Blanc, an unincorporated municipality, and the County of Genesee jointly and severally Defendants- Appellants.

Docket No. 24748.

74 Mich.App. 292, 253 N.W.2d 736

Court of Appeals of Michigan.

March 28, 1977.

Released for Publication May 31, 1977.

[74 MICHAPP 293] Chaklos, Jungerheld, Hoffmann & O'Neill, P. C. by Terence J. O'Neill, Flint, for defendants-appellants.

Kelman, Loria, Downing, Schneider & Simpson by Morton E. Schneider, Detroit, for plaintiff-appellee.

Before RILEY, P. J., and T. M. BURNS and BEASLEY, JJ.

BEASLEY, Judge.

A jury verdict in a wrongful death action awarded plaintiff administratrix $301,800.00 dollars. Defendant now appeals based upon the jury's consideration of decedent's pain and suffering as an element of damages, upon the introduction of certain testimony, and upon certain remarks by plaintiff's counsel during closing arguments. For the reasons stated below, the judgment is affirmed.

Plaintiff's husband was killed in a sewer excavation cave-in while he was employed by Eagle Construction Company, a subcontractor of defendant Gould Engineering, Inc. The defendants admitted liability; the sole issue at trial was the amount of damages.

Plaintiff specifically sought damages for the pain and suffering alleged to have been suffered by the decedent prior to his death. To support such damages,[74 MICHAPP 294] plaintiff introduced the testimony of two law enforcement officers who had been present at the site of the accident. According to one of these officers, two cave-ins occurred. After the first cave-in, decedent's head had been uncovered by his fellow workers and further rescue measures were attempted. A second cave-in then completely covered the decedent. Forty-five minutes later, decedent again was uncovered and the officer testified as to various changes in decedent's physical appearance between the first and the second uncovering. The testimony of the second officer focused on the reactions of decedent's wife when she was told of the accident and when she came to pick up his personal effects.

Damages may be awarded for pain and suffering undergone while a person is conscious between the time of his injury and the time of his death. See, Haynes v. Monroe Plumbing & Heating Co., 48 Mich.App. 707, 720, 211 N.W.2d 88 (1973). The trial court may rule upon the sufficiency of evidence necessary for the question of pain and suffering damages to go to the jury. Smith v. Detroit, 388 Mich. 637, 202 N.W.2d 300 (1972). Here, the trial court decided to instruct the jury on pain and suffering as an element of damages. These instructions are supported by the testimony of the first police officer. Although that officer did not explicitly state that the decedent was conscious, such an inference can be drawn from his testimony. Such an inference is also supported by the evidence showing that decedent's death was not instantaneous and that the cause of death was suffocation.

As is evident from the preceding discussion, the trial court did not err in admitting the testimony of the first police officer. That testimony was directly relevant to the issue of damages for pain and suffering.

[74 MICHAPP 295] The relevancy of the testimony of the second officer is open to question. Appellant argues that reversible error was committed in allowing the testimony since the testimony had the effect of...