Haidy v. Szandzik , 46 Mich. App. 552 ( 1973 )


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  • 46 Mich. App. 552 (1973)
    208 N.W.2d 559

    HAIDY
    v.
    SZANDZIK

    Docket No. 13747.

    Michigan Court of Appeals.

    Decided April 25, 1973.

    Ralph H. Adams, for plaintiff.

    Sugar, Schwartz, Silver, Schwartz & Tyler (by David M. Tyler and Richard D. Toth), for defendants.

    Before: J.H. GILLIS, P.J., and McGREGOR and ADAMS,[*] JJ.

    J.H. GILLIS, P.J.

    Plaintiff William Haidy brought this action to recover for personal injuries sustained in an automobile collision with a truck owned and operated by defendants. At trial, defendants' liability was admitted and the only issue was the amount of damages recoverable. The jury awarded plaintiff $28,233. Defendants moved for and were granted a new trial. Plaintiff appeals upon leave granted. Defendants cross appeal.

    At the time of the accident, which the evidence showed to be minor, plaintiff experienced no immediate symptoms of severe pain, but later in the day he suffered from a sore neck and had to leave *554 work. He was released from the hospital after two or three hours but returned the next day. Plaintiff subsequently retained an attorney who recommended consultation with an osteopathic physician.

    Plaintiff visited that doctor for several years two or three times a week, wore a neck brace, and at trial testified he still had neck pain and was still under treatment, but from another doctor.

    Plaintiff's original doctor testified the neck pain would be permanent. Defendants' doctor testified his examination, conducted six months after the accident pursuant to the request of plaintiff's employer, revealed plaintiff suffered from advanced arthritis, which was unrelated to the accident, and that wearing the neck brace aggravated the problem.

    During closing argument, plaintiff's counsel requested the jury award $28,233, a figure based in part on past medical bills, plaintiff's life expectancy, and the prospect of future medical expense. The jury deliberated for about 15 minutes and returned with a verdict in the requested amount.

    Defendants' motion for new trial alleged, inter alia, that the verdict was excessive and that a medical bill, incurred in 1970, payable to plaintiff's second doctor, who did not testify, was improperly admitted into evidence.

    The trial court, in granting defendants' motion, ruled only that the verdict was excessive. The standard of review of such a decision had been variously described as an inquiry of whether the verdict shocks judicial conscience, Watrous v Conor, 266 Mich. 397 (1934); whether sound evaluation of the evidence reveals no basis for the verdict, Moyer v Shampo, 357 Mich. 391 (1959); whether the verdict is against the clear weight of *555 evidence, Aho v Conda, 347 Mich. 450 (1956); or whether the verdict was secured by improper prejudice or sympathy, Michaels v Smith, 240 Mich. 671 (1927).

    Generally, we consider the trial judge to be in a better position to make such determinations. Consequently, we have given the trial courts wide discretion in determining whether to grant or deny new trial. Benmark v Steffen, 9 Mich. App. 416 (1968). However, as stated in Williams Panel Brick Mfg Co v Hudsin, 32 Mich. App. 175, 177 (1971):

    "The rule laid down in Benmark v Steffen, supra, to determine if the trial judge has exercised his discretion properly is to the effect that if the reasons assigned by the trial judge for his action are legally recognized and the reasons are supported by any reasonable interpretation of the record, he acted within his discretion." (Emphasis supplied.)

    In the case at bar the trial court reasoned the jury must have acted out of sympathy since plaintiff exhibited a tremor which caused an involuntary shaking of his head. The jury in this case was informed by both parties that the tremor condition was unrelated to this accident. It is difficult indeed to accept that reasoning as valid since, on retrial, such a malady would again appear to a new jury.

    The trial court also held the jury could not adequately weigh the evidence since plaintiff's medical testimony was admitted through the deposition of an absent physician. GCR 1963, 302.7, which is applicable to this Wayne County lawsuit, expressly allows use of the deposition of an absent expert witness as evidence at trial.

    The mere fact the jury returned with a verdict after only 15 minutes of deliberation does not *556 mean the verdict was not the product of considered judgment and due deliberation. If the jury carefully followed the evidence and arguments of counsel, there is no reason to suspect it could not reach decision in that amount of time. Moreover, we would be hard put to codify appropriate time periods for such deliberation.

    However, the trial court obviously felt the verdict was excessive. A mediation panel had concluded prior to trial that plaintiff should recover only $2,500. In comparing the mediation award with the jury verdict, the trial court stated:

    "* * * this court feels that an award in excess of $28,000 for such a relatively minor injury as the plaintiff received in this accident is grossly excessive."

    Since we consider defendants' allegation on cross-appeal that proper foundation for a medical bill incurred in 1970 was not made to be well taken, the interpretation of the evidence made by the trial judge quoted above has added significance.

    The bill in question was for $316. However, arising almost three years after the accident, it tended to show plaintiff's injuries to be of a continuing nature. As such, the bill, if properly admitted, would justify a jury finding that future medical bills would be incurred and substantiated plaintiff's claim for future pain and suffering. No testimony showed the necessity or reasonableness of this late medical bill. See Fogel v Sinai Hospital of Detroit, 2 Mich. App. 99 (1965). When coupled with the trial court's finding that plaintiff's injury was minor, the grant of new trial does not appear to be clearly erroneous, since without the addition of future pain and suffering, the jury verdict no doubt could have been in a substantially lesser amount.

    *557 Accordingly, we affirm the trial court and remand for new trial. Costs to defendants.

    All concurred.

    NOTES

    [*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.