Opinion
Docket No. 82.
Submitted October 21, 1925.
Decided December 22, 1925. Motion for rehearing submitted February 17, 1926. Denied conditionally June 7, 1926.
Error to Wayne; La Joie (Ernest P.), J. Submitted October 21, 1925. (Docket No. 82.) Decided December 22, 1925. Motion for rehearing submitted February 17, 1926. Denied conditionally June 7, 1926.
Case by Aldon Campbell against the Haughton Elevator Machine Company for personal injuries. Judgment for plaintiff. Defendant brings error. Affirmed, conditionally.
Anderson, Wilcox, Lacy Lawson ( Ward H. Peck, of counsel), for appellant.
S. Homer Ferguson, for appellee.
A motion for rehearing has been filed in this case. We have carefully considered it and are not persuaded that any of the questions decided in the former opinion ( 233 Mich. 157) should be again considered. There is a question not decided in the former opinion which, however, demands consideration. The trial judge failed to instruct the jury that they should find the present worth of plaintiff's future earnings and future pain and suffering. The attention of the court was called to this failure in the motion for a new trial, together with other matters. We held that defendant had not saved to itself the benefit of that motion and we so hold now. But upon a re-examination of the record, we are satisfied that this particular question was saved by the 34th assignment of error. This error, however, only goes to the amount of the judgment and where we are satisfied to a moral certainty that the ends of justice will be served by requiring a remittitur of a stated amount, such course will be taken. Gallagher v. Monroe, 222 Mich. 202; Sweeney v. Moreland Bros. Co., 227 Mich. 203; Gwitt v. Foss, 230 Mich. 8; Nagi v. Railway, 231 Mich. 452; Gleason v. Lowe, 232 Mich. 300. We are satisfied in the instant case. If plaintiff will remit the sum of $750 from the judgment within 30 days a rehearing will be denied, without costs of the motion. If not, a rehearing will be granted, with costs of the motion.