Dougherty v. Rezolin, Inc

Per Curiam. Plaintiffs decedent sustained injuries as a result of an automobile accident, and maintained this cause of action for damages against defendant corporation, the owner of the other automobile. The jury returned a verdict in favor of plaintiff in the amount of $100,000; the trial judge ordered a new trial unless the plaintiff agreed to a remittitur of $35,000. Plaintiff agreed to the remittitur and judgment was entered in his behalf for $65,000. Defendant now appeals. . The first argument raised by the defendant is that the verdict of $100,000 is clearly excessive, against the great weight of the evidence, influenced by passion or prejudice, and therefore grounds for a new trial on the issue of damages. Throughout his brief, defendant’s counsel addresses his argument to the $100,000 verdict. He ignores the existence of the $35,000 remittitur. When reviewing a decision in which the prevailing party has agreed to a remittitur, the standard on appeal is whether the trial court abused its discretion. (See Majewski v Nowicki, 364 Mich 698; 111 NW2d 887 [1961], Stevens v Edward C Levy Co, 376 Mich 1; 135 NW2d 414 [1965].) While the testimony revealed that decedent’s medical expenses were relatively minimal, the record also reveals evidence that decedent was in continued and serious pain for the 9-1/2 years between the accident and his death. On the basis of the evidence, we do not feel that the trial judge, who had the opportunity to see and hear the testimony of the witnesses, abused his discretion by concluding *638 that $65,000 was the "highest amount * * * which the evidence will support”. GCR 1963, 527.6. The defendant also argues that the trial court erred by failing to grant his motion for a mistrial following references to insurance in the presence of the jury. The first reference to insurance came during the voir dire. A prospective juror indicated that he had been employed by an insurance company which defense counsel’s partner occasionally represented. Plaintiff’s challenge for cause was granted; defendant voiced no concern regarding the reference to insurance. The other references to insurance came during the defendant’s cross-examination of one of plaintiff’s witnesses. Defense counsel asked about a statement which the witness had given to an "investigator”; the witness answered by referring to the investigator as an "insurance adjuster”. Defendant’s motion for a mistrial was denied by the court. The trial judge ruled correctly; casual, unintentional references to insurance do not compel the grant of a mistrial. Cacavas v Bennett, 37 Mich App 599; 194 NW2d 924 (1972). Defendant’s final argument, that the trial court erred by limiting defendant’s cross-examination of one of plaintiff’s witnesses on the basis of a prior written statement is also without merit. An examination of the record reveals that the trial court permitted defense counsel to cross-examine the witness on the basis of the portions of the statement which were within the scope of direct examination and/or relevant to the issues being tried. Affirmed.