Yates v. Wenk

Citation109 N.W.2d 828,363 Mich. 311
Decision Date28 June 1961
Docket NumberNo. 41,41
PartiesEileen P. YATES, Plaintiff, and Appellee, v. Herbert C. WENK, Defendant and Appellant.
CourtSupreme Court of Michigan

Louis M. Dyll, Detroit, and Burke, Burke & Ryan, Ann Arbor, for defendant and appellant.

Schwartz, O'Hare, Sweeney & Sullivan, Detroit, for plaintiff and appellee.

Before the Entire Bench, except SMITH, J.

EDWARDS, Justice.

This is a suit for damages resulting from a rear-end collision. Plaintiff had stopped her car in line behind others when defendant's car ran into a third car and drove it into rear of plaintiff's car. Trial resulted in a judgment for plaintiff based upon a jury's verdict of $18,000. A motion for new trial was made and denied. On appeal defendant claims several grounds for reversal, none of which concerns liability.

Plaintiff suffered a 'whip-lash' injury in the accident.

For a long period of time prior to the collision plaintiff had suffered occasional migraine headaches. Following the collision she testified she experienced almost continuous neck and head pains. Much of the controversy in this case at trial and on appeal concerns extent of the pain and establishment of a causal connection between plaintiff's condition and the accident.

The only medical testimony in the trial was offered by plaintiff and included the testimony of 2 doctors who treated her for her complaints. Plaintiff's counsel asked a hypothetical question which concluded:

'Now, Doctor, assuming all of those facts to be true, do you have an opinion, based upon a reasonable medical certainty, as to whether they could be, whether there could be a causal connection between the rear-end collision, which I described at the beginning, the rear-end collision accident, and the condition of pain and ill-being as set forth in this question in that person?'

In response, Dr. Taran testified:

'My opinion is that there is a possible relation between the accident so described and the complaints which the patient makes.'

Defendant's counsel objected and asked that the answer be stricken because it was based upon 'possibilities, guesses, or conjectures.' The trial judge refused and defendant claims error, citing Buehler v. Beadia, 343 Mich. 692, 708, 73 N.W.2d 304, and other authorities. At the outset, it must be observed that we are not dealing here with a jury's verdict which rests alone upon the challenged opinion testimony. The jury had the benefit also of Dr. McIntyre's testimony which had been taken by deposition and which was read to the jury. Dr. McIntyre testified:

'My opinion is that the accident caused her to have the bruising of the nerve roots and the pain which developed as a consequence of it.'

Indeed, Dr. Taran himself testified, on cross-examination, that the accident was the most probable cause of plaintiff's worsened headaches and pain.

At the time of Dr. Taran's testimony, Dr. McIntyre's deposition had already been introduced in evidence and the trial judge then knew that other more direct testimony of causal connection was before the jury. Under such circumstances, there exists no valid reason for excluding opinion testimony which was stated in the manner permitted prior to adoption of Court Rule No. 37, § 16. Even in the absence of prior testimony such as Dr. McIntyre's, expert opinion evidence cast in terms of possibility or probability should be admitted subject to protective instruction by the trial judge in his charge to the jury.

Section 16 was added to Court Rule No. 37 in belated recognition of the fact that our prior evidentiary limitations upon expert witnesses called upon to express opinions concerning matters of specialized knowledge beyond the knowledge of laymen unduly restricted such witnesses. Such witnesses now may testify, if they can, in terms of the ultimate issue to be decided by the trier of the facts. It would be a strange result if we were to conclude that such witnesses may testify now only if they can do so in terms of ultimate fact. Our new rule designed to unseal the lips of experts, instead, would gag them even more effectively than they were before. We find no error in the admission of Dr. Taran's testimony.

Nor do we find error, as defendant claims, in the trial judge's failure to instruct the jury specifically as to the 'probative value' of Dr. Taran's opinion testimony. We assume defendant's claim is that the trial judge should have instructed the jury to disregard the testimony or to give it little weight. Even had defendant requested such instruction (and he did not), we believe the trial judge would not have erred in refusing the request.

The court did charge at length on the jury's function in determining the facts concerning plaintiff's claim of injury:

'You shall receive the evidence on damages and discard that which you believe was not caused by, or was not related to the accident. Damages included pain and suffering. There is evidence here that the plaintiff had a history of re-occurring headaches from childhood. Further that her experience with migraine headaches continued to the present time. If you believe that her headaches were caused by the accident then you shall make that decision. In the same way if you find that her headaches were not caused from the accident then you should so determine and disallow as much of such claim as you find was occasioned by he headaches.'

In other paragraphs bearing on the same by her headaches.' to find for plaintiff only as to those damages which the jury found to have been 'strictly caused' by the accident or occasioned as 'a direct result of the accident.' Four times his charge employed the terms 'reasonable certainty' or reasonably certain,' as describing the test to be applied to expert opinion evidence concerning plaintiff's damage claims.

We find no error which was prejudicial to appellant.

Defendant next claims the trial judge committed reversible error in refusing even to consider certain handwritten requests to charge submitted to him by defendant at the conclusion of proofs. The record indicates that the trial judge's refusal was based upon the fact that opposing counsel had not had a chance to see them. We think it would have been better practice for the judge to have reviewed defendant's additional requests with counsel for both parties and to have taken whatever time was necessary to do so. Although trial counsel should be encouraged to prepare requests to charge well in advance of their need by anticipating the issues which the proofs will develop, they should not be discouraged from making changes therein, or additions thereto, at any time before the jury retires to deliberate if...

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32 cases
  • Beagle v. Vasold
    • United States
    • California Supreme Court
    • 31 Agosto 1966
    ...136 So.2d 448; Eastern Shore Public Service Co. v. Corbett (1962) 227 Md. 411, 177 A.2d 701, affd. Md., 180 A.2d 681; Yates v. Wenk (1961) 363 Mich. 311, 109 N.W.2d 828; Flaherty v. Minneapolis & St. Louis Railway Co. (1958) 251 Minn. 345, 87 N.W.2d 633; Arnold v. Ellis (1957) 231 Miss. 757......
  • Pippen v. Denison, Division of Abex Corp.
    • United States
    • Court of Appeal of Michigan — District of US
    • 26 Enero 1976
    ...a per diem formula for pain and suffering damages and loss of consortium, a method specifically approved in Michigan, Yates v. Wenk, 363 Mich. 311, 109 N.W.2d 828 (1961); Crenshaw v. Goza, 43 Mich.App. 437, 444, 204 N.W.2d 302 (1972). Defense counsel, for tactical reasons, did not argue the......
  • Precopio v. City of Detroit, Dept. of Transp.
    • United States
    • Michigan Supreme Court
    • 23 Diciembre 1982
    ...tenderness of the neck muscles at the base of the skull and at the tips of his shoulder blades. Two years later, in Yates v. Wenk, 363 Mich. 311, 109 N.W.2d 828 (1961), this Court sustained a jury award of $18,000 for pain and suffering where plaintiff experienced continuous neck and head p......
  • Franco v. Fujimoto
    • United States
    • Hawaii Supreme Court
    • 24 Marzo 1964
    ...R. Co. v. Jones, Okl., 354 P.2d 415; Louisville & Nashville R. Co. v. Mattingly, Ky., 339 S.W.2d 155; Yates v. Wenk, 363 Mich. 311, 109 N.W.2d 828; Little v. Hughes, La.App., 136 So.2d 448; Eastern Shore Public Service Co. v. Corbett, 227 Md. 411, 177 A.2d 701; Corkery v. Greenberg, 253 Iow......
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8 books & journal articles
  • Handling Evidentiary Issues
    • United States
    • James Publishing Practical Law Books Archive Proving Damages to the Jury - 2013 Contents
    • 13 Agosto 2013
    ...Arrington , 111 So.2d 82, 87 (Fla.Dist.Ct.App. 1959). • Hawaii, Barretto v. Akau , 51 Haw. 383, 393 (1969). • Michigan, Yates v. Wenk , 363 Mich. 311, 317-18 (1961). • Mississippi, Arnold v. Ellis , 231 Miss. 757, 765 (1957). • Montana, Wyant v. Dunn, 140 Mont. 181, 187 (1962). • Rhode Isla......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive Proving Damages to the Jury - 2020 Part 5: How to handle unique issues in damage cases
    • 5 Agosto 2020
    ...918-19, 923-27 (Tex.App. – Houston [14th Dist.] 2005), §§16:90, 16:92 Wyant v. Dunn, 140 Mont. 181, 187 (1962), §9:05 Y Yates v. Wenk , 363 Mich. 311, 317-18 (1961), §9:05 TABLE OF CASES ...
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Proving Damages to the Jury - 2016 Part 5: How to Handle Unique Issues in Damage Cases
    • 13 Agosto 2016
    ...918-19, 923-27 (Tex.App. – Houston [14th Dist.] 2005), §§16:90, 16:92 Wyant v. Dunn, 140 Mont. 181, 187 (1962), §9:05 Y Yates v. Wenk , 363 Mich. 311, 317-18 (1961), §9:05 C-10 Table of Cases ...
  • Table of cases
    • United States
    • James Publishing Practical Law Books Proving Damages to the Jury Part 5
    • 4 Mayo 2022
    ...918-19, 923-27 (Tex.App. – Houston [14th Dist.] 2005), §§16:90, 16:92 Wyant v. Dunn, 140 Mont. 181, 187 (1962), §9:05 Y Yates v. Wenk , 363 Mich. 311, 317-18 (1961), §9:05 TABLE OF CASES TABLE OF CASES (This page intentionally left blank.) ...
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