Opinion
Docket No. 9611.
Decided April 1, 1971.
Appeal from Oakland, Arthur E. Moore, J. Submitted Division 2 March 3, 1971, at Lansing. (Docket No. 9611.) Decided April 1, 1971.
Complaint by Tim Jackson and Dorothy Jackson against Roy E. Gregory for damages for injuries from an automobile collision. Judgment on a jury verdict for plaintiffs. Plaintiffs appeal the adequacy of damages awarded. Reversed and remanded for a determination of damages only.
Albert H. Reifler ( Frances R. Avadenka, of counsel), for plaintiffs.
Condit, Denison, Devine, Porter Bartush ( Alexander B. McGarry, attorney for appellee, and Charles J. Porter, of counsel), for defendant.
Before: R.B. BURNS, P.J., and J.H. GILLIS and T.M. BURNS, JJ.
Plaintiffs were back-seat passengers in an accident which occurred on October 23, 1967. The jury determined that the drivers of both of the automobiles in the accident were negligent. Plaintiffs appeal, however, contending the verdict of the jury was, as to both plaintiffs, inadequate.
At the trial, plaintiff Dorothy Jackson proved that her out-of-pocket damages were $50.15. Tim Jackson's out-of-pocket expenses were at least $263.03. The jury returned a verdict of $29 for Dorothy Jackson and $136 for Tim Jackson. Plaintiffs contend the two awards are clearly inadequate since they do not even compensate plaintiffs for their out-of-pocket expenses.
A jury verdict may not ignore uncontroverted out-of-pocket expenses. Ross v. Richardson (1970), 29 Mich. App. 110. A jury verdict which does ignore such out-of-pocket expenses is inadequate and must be reversed:
"A jury award which ignores uncontroverted out-of-pocket expenses is inadequate on its face. Hugener v. Michlap (1966), 2 Mich. App. 157; Whitson v. Whiteley Poultry Co. (1968), 11 Mich. App. 598. So too, an award which ignores pain and suffering is also inadequate. Fordon v. Bender (1961), 363 Mich. 124."
Cooper v. Christensen (1970), 29 Mich. App. 181, 184.
Since the award in the instant case is less than plaintiffs' out-of-pocket expenses, the case must be reversed and remanded for a new trial as to damages only.
Plaintiffs also contend that the introduction of Tim Jackson's "Employees Personal Record" kept by Mr. Jackson's employer (defendant's Exhibit A) and the record kept by the medical department of his employer (defendant's Exhibit B) was error in that certain matters contained therein were prejudicial.
Exhibit A was Mr. Jackson's foreman's record on Jackson which was made in the ordinary course of business. Exhibit B was an employee medical record on Tim Jackson. Both records contained numerous references to back trouble which Mr. Jackson had complained of. Since both records were made in the ordinary course of business, they should be admissible under the business records exception to the hearsay rule. MCLA § 600.2146 (Stat Ann 1962 Rev § 27A.2146).
Plaintiffs contend on appeal that the records prejudiced the jury against Mr. Jackson because they contained references to venereal disease and profane language. However, plaintiffs' objections below were based upon hearsay and irrelevance. Since the records were certainly relevant due to the many references to prior back injuries and were admissible as business records, the trial court was correct in admitting them. We will not consider plaintiffs' contention that they were prejudicial since the issue was not raised below, and because on retrial the alleged prejudicial material can be eliminated, if any is found by the trial court, by a motion to restrict or qualify the jury's consideration of the evidence.
See Rottman v. Township of Waterford (1968), 13 Mich. App. 271, 273, 274; Pfeiffer v. Haines (1948), 320 Mich. 263.
Reversed and remanded for a determination of damages only.