Precopio v. City of Detroit

Per Curiam.

The plaintiffs, Mr. and Mrs. Robert Precopio, brought this action against the City of Detroit to recover for injuries sustained when a DSR bus struck the rear of plaintiffs’ car. Mr. Precopio was the sole occupant of the car at the time of the collision. Trial was to the court without a jury. The court found in favor of Mr. Precopio and awarded damages of $436,085. A judgment of no cause of action was entered as to Mrs. Precopio for a failure of proof. The trial court subsequently denied the city’s motion for a new trial and granted plaintiffs’ motion to amend the ad damnum clause of the complaint.

I

The city first claims that the court’s finding of liability is against the "clear preponderance of the evidence”. The standard under which appellate courts review a trial court’s finding is the clearly erroneous standard of GCR 1963, 517.1. Under this standard, " '[a] finding is "clearly erroneous” when *509although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed’ Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976), quoting United States v United States Gypsum Co, 333 US 364, 395; 68 S Ct 525; 92 L Ed 746 (1948).

In ruling on defendant’s motion for new trial, the court stated this was a relatively simple rear end collision. Giving due deference to the trial court’s superior position to judge credibility, we are constrained to agree. The court’s conclusion that plaintiff had been sitting at a red light for at least three seconds before being struck by the bus is sufficient to support the inference of negligence. We find no error in this issue.

II

By far, the more difficult issue is raised by the city’s claim that the damages awarded were excessive. A large percentage (approximately 92%) of the award is for prospective damages. $375,000 was allocated to compensate plaintiff for past, present and future pain and suffering. We agree that the award is a large one, but the size of the award alone does not make it excessive. The rules we must apply were well stated in Watrous v Conor, 266 Mich 397, 401-402; 254 NW 143 (1934):

"There is and can be no absolute standard by which we can measure the amount of damages in personal injury cases. Individual opinions may differ as to the correctness of awards, even those made by trial judges. It has yet to be determined whether the judgment of a one-man jury is sounder than that of 12. The parties seemed to prefer the judgment of one and waived a jury. Now appellant suggests that the judgment of eight is better than either method. Adopting defendant’s *510contention that, at best, the showing here is only one of pain and suffering, plus expenses for medical services and hospitalization attention, we still prefer our rule stated in the case of Weil v Longyear, 263 Mich 22 [248 NW 536 (1933)], that the amount allowed for pain and suffering must rest in the sound judgment of the trier of the facts. Assuming even that our verdict might be in a different amount, we are loath to disturb verdicts for personal injuries on the ground that the amount is excessive. Cawood v Earl Paige & Co, 239 Mich 485 [214 NW 402 (1927)]. We do not substitute our judgment on this question unless a verdict has been secured by improper methods, prejudice or sympathy. Michaels v Smith, 240 Mich 671 [216 NW 413 (1927)]. No such showing has been made, nor were the verdicts so great as to shock the judicial conscience. Sebring v Mawby, 251 Mich 628 [232 NW 194 (1930)].”

Defendant has failed to demonstrate that the judge’s decision was based on improper conduct by plaintiff, prejudice or sympathy. Nor are we willing to say that the amount of the award shocked our collective judicial conscience.

Insofar as defendant argues that the size of the mediation panel’s suggestion and the amount which would have been acceptable in settlement as set out in plaintiffs’ pretrial statement are evidence of an excessive judgment, the short answer is these amounts were never accepted by both parties. What defendant fails to recognize is that differences of opinion with respect to the value of an injury do not necessarily indicate that the lower value is correct. The judge’s assessment came after a full trial. This evaluation was, in time, when the severity and possible permanency were subject to a greater degree of proof. We find no error in the size of the award.

Ill

When the complaint was originally filed in 1973, *511plaintiffs sought $200,000 as full compensation for their injuries. Defendant claims error in allowing an amendment to the ad damnum clause to conform with the court’s finding.

Under the present rules, a party is allowed to recover an amount in excess of that originally requested in the ad damnum clause. GCR 1963, 518.3. Gibeault v Highland Park, 49 Mich App 736; 212 NW2d 818 (1973), aff’d 391 Mich 814; 217 NW2d 99 (1974). The plaintiff must seek an amendment to the pleadings and the award must have been supported by the evidence. Gibeault v Highland Park, supra, Tomei v Bloom Associates, Inc, 75 Mich App 661; 255 NW2d 727 (1977).

In this case plaintiffs sought an amendment and it was fully considered by the court before it was granted. In line with our holding on the previous issue, we conclude that the award was supported by the evidence.

Affirmed. Costs to appellee.