Opinion
Docket No. 49163.
Decided April 5, 1982.
Lopatin, Miller, Freedman, Bluestone, Erlich Rosen (by Steven G. Silverman), for plaintiff.
Dykema, Gossett, Spencer, Goodnow Trigg (by J. Thomas Lenga and M. Teresa D'Arms), for defendant.
Before: D.C. RILEY, P.J., and R.M. MAHER and CYNAR, JJ.
Defendant Uniroyal appeals of right from a jury verdict rendered in Wayne County Circuit Court on November 5, 1979. Plaintiff cross appeals. This case arose from an accident wherein plaintiff, the operator of a gas station, was injured as a result of the explosion of an automobile tire while plaintiff was repairing a leak in the tire. The jury found defendant Uniroyal 60% negligent and plaintiff 40% negligent, resulting in a net verdict for plaintiff of $117,500.
I
Defendant Uniroyal argues that the trial court committed reversible error in its jury instruction that the plaintiff need not identify the specific cause of the defect in the tire to sustain his burden of proof and by failing to instruct the jury, as requested by defendant Uniroyal, that proof that an accident occurred and that injury resulted did not meet plaintiff's burden of proof. We find no error in the instruction given. In Holloway v General Motors Corp (On Rehearing), 403 Mich. 614, 621-623; 271 N.W.2d 777 (1978), the Michigan Supreme Court explained the applicable law relative to the burden of proof concerning specific defects. The instructions given in the instant case are consistent with that burden of proof.
Regarding the trial court's refusal to give the instruction requested by defendant Uniroyal, we find that the jury was properly instructed as to plaintiff's burden of proof. We think it unnecessary for the trial court to instruct the jury as to what does not establish plaintiff's case, when it has given complete and correct instructions as to what is required in order for plaintiff to recover.
II
Defendant Uniroyal claims that the trial court erred by instructing the jury that, if plaintiff's damages could not be estimated with certainty, they should give excessive compensation rather than risk giving an inadequate award of damages to plaintiff.
The trial judge gave the following instruction to the jury:
"You must attribute to the accident only those damages which directly resulted from the negligence of the defendant. The amount of money to be awarded for certain of these elements of damage, such as pain and suffering, cannot be proved in a precise dollar amount. The law leaves such amount to your sound judgment. Your verdict must be solely to compensate plaintiff for his damages, and not to punish the defendant.
"The defendant in this case cannot be held liable for injuries inflicted by another party in a separate accident. You must attribute to the defendant here only those damages which directly resulted from the negligence, if any, of the defendant in regard to this accident.
"Further, if from the nature of the case damages cannot be estimated with certainty and there is a risk of giving by one course less and another course more than a fair compensation, it is the policy of the law of this state that it is better to run a slight risk of giving somewhat more than actual compensation than to reach a result which under the circumstances of the case, would in all reasonable probability, prejudice the injured plaintiff for the recovery of a large portion of the damages he has suffered."
Defendant Uniroyal complains of that portion of the instruction wherein the court told the jury that it is better to run a slight risk of giving more compensation.
The language in question appears in the early case of Allison v Chandler, 11 Mich. 542, 553-554 (1863). A careful reading of that case reveals that the policy of running a slight risk of giving somewhat more than actual compensation was advanced there as a justification for allowing juries to consider elements of damages, the amount of which was not ascertainable as an exact sum but the existence of which was supported by competent evidence. See Story Parchment Co v Paterson Parchment Paper Co, 282 U.S. 555, 562, 566; 51 S Ct 248; 75 L Ed 544 (1930).
The relevant issue in Allison was whether the jury could consider evidence of lost profits as an element of damages in tort where the tortfeasor caused plaintiff's place of business to become untenantable, forcing him to move to a demonstrably less desirable location. The Court decided that where lost profits could be shown with reasonable (even though not exact) certainty, they were a proper element of damages for consideration by the jury. Id., 559-560. The Court noted, however, that, where profits were too contingent, remote or speculative, the jury would not be allowed to consider such evidence.
The policy in question is used to justify holding a tortfeasor responsible for 100% of a plaintiff's damages where a defendant's tort causes an aggravation of a plaintiff's previous injury and the jury is unable to apportion the damages between the tortfeasor and the previous cause. McNabb v Green Real Estate Co, 62 Mich. App. 500, 515-519; 233 N.W.2d 811 (1975).
The instruction as used in the instant case follows the general principle of Allison and McNabb that a defendant should bear the burden of uncertainty as to the amount of damages, once that defendant is found, in fact, to have been responsible. We note that such an instruction must be used carefully so as to be limited to the question of the amount of damages. In the instant case the instructions, when read as a whole, were proper.
III
Defendant Uniroyal complains of the admission of evidence of defective tires other than the one involved in the accident.
We find no error in the admission of the testimony of defects in other tires given by plaintiff's expert. That testimony was given to qualify plaintiff's expert, and was admissible in the trial court's discretion. MRE 702, Siirila v Barrios, 398 Mich. 576, 591; 248 N.W.2d 171 (1976). We find no abuse of that discretion in the instant case.
A more difficult question is presented by the admission of evidence that the owner of the car in the instant case had exchanged two of the original tires two months prior to the accident. The tire which was involved in the accident was also an original tire and apparently was manufactured in the same series as the exchanged tires. The owner could not recall why he had exchanged the tires. The trial court admitted, over defendant Uniroyal's objection, a Uniroyal claim form that indicated the exchange of the two tires. On cross-examination of plaintiff's expert witness, Mr. Harm, defendant Uniroyal established that this form showed that the tires were exchanged because of abuse as opposed to manufacturing defects. No other evidence regarding the exchanged tires was produced.
Plaintiff contended in closing argument that the exchanged tires must have had manufacturing defects, because otherwise defendant Uniroyal would not have made the exchange (which involved pro-rating the value of the used tires). Plaintiff argued that this inference arose from the fact that defendant Uniroyal was in the business of selling tires for profit and thus would not have made the exchange if defendant Uniroyal were not responsible for some defect in the tires. We regard this argument as being speculative and unsupported by the evidence. It was, therefore, improper. Defendant Uniroyal is not entitled to reversal, however.
Koepel v St Joseph Hospital, 381 Mich. 440; 163 N.W.2d 222 (1968), held that defense counsel did not preserve for review the question of whether the impact of remarks by plaintiff in closing argument would constitute error requiring reversal where he merely objected to the remarks without making either the motion for mistrial or request for corrective instruction, the denial of which is a prerequisite to the right of appellate review.
Any alleged prejudicial effect of the argument in question was further eliminated by the trial court's instruction to the jury that: "Arguments, statements, and remarks of attorneys are not evidence, and you should disregard anything said by an attorney which is not supported by the evidence or by your own general knowledge and experience." See, e.g., Dalm v Bryant Paper Co, 157 Mich. 550; 122 N.W. 257 (1909).
IV
There is no merit to plaintiff's first two claims on cross-appeal.
The trial court did not err by instructing the jury on contributory negligence. Plaintiff's claim that the trial court erroneously instructed the jury on contributory negligence rests upon the premise that this case went to the jury solely on a theory of breach of implied warranty. This premise is incorrect; the record shows that the jury was also given a theory of negligence to consider. Accordingly, we reject this argument.
The trial court's grant of defendant Uniroyal's motion for directed verdict on the claim of breach of express warranty was proper, since no evidence of an express warranty by defendant Uniroyal was introduced. Even if such a warranty existed, there was no evidence of its content introduced, and so the question of whether it had been breached could not have been resolved by the jury.
VI
Plaintiff contends that the trial court erred by granting defendant Uniroyal's motion for directed verdict as to plaintiff's claim of breach of a duty to warn. As in Thorp v Dayton Tire Rubber Co, 51 Mich. App. 514, 524; 215 N.W.2d 600 (1974), if the accident occurred because of defective manufacture, the manufacturer is liable whether a warning is given or not, and no instruction on a duty to warn theory is necessary. On appeal, plaintiff does not state exactly what type of warning should have been given, but we are satisfied that plaintiff's awareness of the danger of tire weakness resulting from abuse as opposed to defective manufacture was sufficiently demonstrated on the record so that the trial court could conclude that any warning of danger due to abuse would have been ineffective. Id., 525.
VII
Plaintiff's final contention on cross-appeal is that the trial court erred by ruling that evidence of plaintiff's lost profits was inadmissible as being too speculative for consideration by the jury.
While some cases hold that evidence of a decline in profits from a business may be admitted as bearing on a tort victim's damages, Hart v Village of New Haven, 130 Mich. 181, 183, 186; 89 N.W. 677 (1902), such evidence should not be admitted where the lost profits are remote, contingent or speculative. Allison, supra. It is not proper to consider the lost profits as the measure of damages. Hunter v Baldwin, 268 Mich. 106, 111; 255 N.W. 431 (1934).
During the course of the trial, defendant Uniroyal moved to exclude evidence of lost profits from the service station operated by plaintiff. The trial court granted the motion but allowed plaintiff to make an offer of proof on a separate record. According to that record, plaintiff sought to admit as evidence the amount of profits derived from the operation of the service station in the years following the accident. By comparing this figure with the amount of profits prior to the accident, plaintiff purported to establish damages sustained as a result of the accident. Plaintiff contended that the amount in question was not really lost profits but constituted his own lost income.
The defect in plaintiff's position is that plaintiff sought to admit the amount of profit as shown on his annual income tax returns, but wanted those figures admitted as isolated amounts. Plaintiff claimed that the other information on the tax returns was "privileged". Apparently the pre-accident returns showed profits of over $9,000 while the profits in various post-accident years appears to have varied from approximately $5,500 to $7,500. The record shows that, while profits were down, gross receipts of the station were up. Furthermore, plaintiff testified that the amount of profits, which corresponded to his personal income, consisted of whatever he decided he needed for his personal use each week. He had no regular "wage" which he paid himself. Our review of the special record convinces us that any connection between plaintiff's accident and the drop in income as given in his tax records is, at best, highly speculative. We note that Allison and subsequent cases support admission of evidence of lost profits where the fact that the loss results from the tortious conduct of the defendant is certain even though the amount is uncertain. Story Parchment Co, supra. In the instant case, the causal link between the loss of profits and the accident is absent, if not affirmatively refuted by the special record.
Affirmed.