Opinion
Docket No. 76542.
Decided February 5, 1985. Leave to appeal applied for.
Meklir, Schreier, Nolish Friedman, P.C. (by Ira B. Saperstein), for plaintiffs.
Kohl, Secrest, Wardle, Lynch, Clark Hampton (by Michael L. Updike), for defendants.
Plaintiffs brought suit in Wayne County Circuit Court seeking damages for injuries suffered in an automobile accident. The jury found no cause of action. Plaintiffs made a motion for a new trial. The motion was granted on June 29, 1983. Defendants' motion for rehearing was denied. Defendants now appeal to this Court by leave granted.
The accident occurred on April 14, 1977. The Defendant Robert Denison was driving a truck which collided with the vehicle in which plaintiff Marlene Vargo was a passenger. Marlene Vargo testified that she experienced dizziness and headaches, as well as throbbing pain in her left shoulder and arm after the accident. She used hot baths, massages and a heating pad to treat the pain. Six and one-half months after the accident she sought acupuncture treatment from Dr. Lu, M.D. He treated her for one month. Mrs. Vargo was later referred to Dr. Leonard Sahn, a neurologist, by her insurance company. Mrs. Vargo testified at trial that she continued to suffer pain and that her range of motion was restricted.
Dr. Sahn testified by videotape deposition. He stated that plaintiff suffered from osteoporosis, osteoarthritis and degenerative disc disease. He stated that he felt plaintiff's complaints were genuine, that her disability was permanent and that she would suffer continuing pain. Dr. Sahn stated that he believed that Mrs. Vargo's conditions predated the accident, but that the accident was the cause of her pain.
The jury, in a special verdict, held that defendant Denison was negligent, but also found that his negligence was not the proximate cause of plaintiff's injuries. Subsequently, plaintiffs moved for a new trial. The motion was granted. Defendants' motion for rehearing was denied.
The issue is whether the trial court abused its discretion by granting plaintiffs a new trial. We find that there was an abuse of discretion and reverse the trial court.
The grant or denial of a motion for a new trial rests in the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Andrews v Ins Co of North America, 394 Mich. 464; 231 N.W.2d 645 (1975). In Benmark v Steffen, 9 Mich. App. 416; 157 N.W.2d 468 (1968), this Court recognized a two-step analysis which should be used in reviewing a trial court's decision to grant a motion for a new trial. First, the reviewing court must determine if the reasons assigned for granting the motion are legally recognized. Second, the reviewing court should determine whether the reasons are supported by a reasonable interpretation of the record.
The first part of the Benmark test was satisfied. GCR 1963, 527.1(5) allows the court to set aside the jury's verdict where it is against the great weight of the evidence. However, the second part of the test has not been satisfied. A reasonable interpretation of the record does not support the trial court's conclusion that the verdict was against the great weight of the evidence. The trial judge stated that, in her opinion, Mrs. Vargo was a person "beyond the range of experience" of the jurors. The judge stated that the jurors ignored evidence about Mrs. Vargo's personality and that she was absolutely convinced that the jury's verdict was a mistake. The trial judge granted the new trial based on the credibility of the plaintiff. That reason was outside of the bounds of the trial court's discretion.
In Woodin v Durfee, 46 Mich. 424, 427; 9 N.W. 457 (1881), Justice COOLEY wrote:
"It is said that on some points there was no evidence of a conflicting nature; but that does not aid the claimant. A jury may disbelieve the most positive evidence, even when it stands uncontradicted; and the judge cannot take from them their right of judgment. If they return what he thinks is a perverse verdict, he may set it aside and order a new trial; but he cannot take upon himself their functions as was done here."
Similarly this Court stated in Humphrey v Bay Refining Co, 16 Mich. App. 394, 397-398; 168 N.W.2d 314 (1969), lv den 382 Mich. 760 (1969):
"Nevertheless the rule does not give a trial judge unlimited power to grant a new trial merely because he does not agree with the verdict. He may not substitute his judgment for that of the finders of fact, and a grant of new trial should be based upon demonstrable errors in the trial." The trial court abused its discretion in granting a new trial. Vanden Bosch v Consumers Power Co, 56 Mich. App. 543; 224 N.W.2d 900 (1974), rev'd on other grounds, 394 Mich. 428; 230 N.W.2d 271 (1975).
Reversed.