BRONSON, J.
On October 25, 1970, plaintiff John Pippen was injured while operating a hydraulic power press for Atlantic Die Casting Company. He brought suit against the manufacturer of the press, Denison Division of Abex Corporation, alleging breach of warranty in the design and manufacture of the press. He also claimed negligence in the design of the press and in the failure to warn the user of the press of potential dangers. John Pippen's wife, Evelyn, sued for loss of consortium. The jury returned a verdict in favor of John and Evelyn Pippen in the amounts of $1,250,000 and $500,000, respectively. The trial judge found the verdict to be excessive, but denied a motion for a new trial on condition that the plaintiffs each remit part of the verdict. Plaintiffs agreed, and judgment was entered for $625,000 and $100,000, respectively.
The press in question was used to trim excess metal from die castings, and had been sold to Atlantic by Denison in October of 1966. The press was equipped with dual "palm buttons" as a safety device. These buttons are located on each side of the machine, to keep the operator's hands out of the dangerous area of the press. Both buttons must be pressed before the "ram" comes down, cuts the metal from the castings, and returns to its original position. The center piece of casting remains to be removed by hand.
In theory, the press does not cycle again until both palm buttons are released and pressed down again, thus protecting the operator's hands. On the night in question, however, as plaintiff reached in to remove the casting, the press repeated its cycle without plaintiff having pressed the palm buttons. The ram caught his arm and crushed it. The doctors treating his injuries were required to amputate his arm above the elbow. The press again "repeat cycled" after Mr. Pippen was injured.
At trial, plaintiffs presented no direct evidence to identify a particular part of the press that failed, causing the press to "repeat cycle". However, plaintiff's expert witness testified that the only possible area of failure was in the control mechanism, sealed in the control box of the press. Indicating that this press was "relatively new", since a press normally operates for 30 to 40 years, the expert felt that a sticking relay valve or malfunctioning solenoid were the most likely causes of the press "double tripping". The expert found the press design to be defective because the electrical circuitry of the control box would not prevent the press from cycling upon failure of either of those two parts. The plaintiff's expert also testified that the press was defective, in that there were insufficient safety features designed into the press which were available at the time, i.e., a safety block.
Defendant did not contest the fact that the press "repeat cycled". Instead, Denison's expert witness, after an inspection of the press several days after the accident, put forth two alternative theories as to the cause of the malfunction. First, metal fragments had entered the control box because the control box had been opened and improperly resealed. Second, Denison alleged that a substitute palm button had been opened and not properly resealed. The trial judge allowed that testimony into evidence only upon the condition that defendant show that these conditions existed on the date of the accident, and were not caused by the employer's investigation of the accident. Defendant never introduced any evidence showing those facts.
Defendant raises numerous issues upon appeal, but we find only two merit discussion: (1) whether the trial judge improperly instructed the jury on an implied warranty cause of action because plaintiff failed to show a "defect" existed in the press; and (2) whether the amount of damages awarded both before and after remittitur were excessive.
I. The Warranty Instruction
In order to recover from Denison for breach of an implied warranty, the plaintiff must allege and prove that (a) the press in question was transferred from the manufacturer's possession while in a "defective" state and (b) as a result of being "defective", the product caused personal injury or property damage, Piercefield v Remington Arms Co, Inc, 375 Mich. 85; 133 N.W.2d 129 (1965). The proof that a product is defective can be drawn from circumstantial evidence without a showing of a specific demonstrable defect, Bronson v J L Hudson Co, 376 Mich. 98; 135 N.W.2d 388 (1965).
Defendant expresses agreement with those legal statements, but contends that plaintiff's theory that the press malfunctioned as a result of a "defect" was "mere conjecture", citing Kaminski v Grand Trunk W R Co, 347 Mich. 417; 79 N.W.2d 899 (1956). Defendant's theory that the press was improperly maintained and modified by plaintiff's employer is said to be equally as probable as plaintiff's theory as to the cause of the malfunction. Defendant argues that, under the Kaminski rule on circumstantial evidence, there is insufficient proof of causation to go to the jury. On its face, that argument is persuasive, yet we find that it does not comport with recent Michigan products liability law.
The Kaminski case does set forth important rules governing the use of circumstantial evidence. There, plaintiff was injured by a metal cart while he was working at a General Motors plant near certain railroad tracks. Plaintiff sued Grand Trunk, contending that a train owned by that company had negligently knocked the cart into plaintiff. It was dark at the time of the accident, so there was no direct evidence that the train had hit the cart. Grand Trunk claimed that plaintiff had proven only that the accident occurred, and that non-negligent explanations of the cause of the accident were equally as probable as the plaintiff's theory. Defendant, then, argued on appeal that its motion for a directed verdict should have been granted.
The Kaminski Court reiterated the "conjecture" rule as being applicable to the case:
"`As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be 2 or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any 1 of them, they remain conjectures only.'" 347 Mich at 422.
Yet the Court went on to state that if proven facts support plaintiff's theory, viewing them most favorably to plaintiff, the case can go to the jury. Looking to the particular facts, the Supreme Court found defendant's theories to be of "comparative improbability" in relation to the inference of negligence plaintiff wished to draw from the proven facts. The denial of a directed verdict was upheld.
The "conjecture rule" is quite narrow in its operation. As stated in the early case of Schoepper v Hancock Chemical Co, 113 Mich. 582, 586; 71 N.W. 1081 (1897):
"It is true that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. Robinson v Charles Wright Co, 94 Mich. 283 [53 N.W. 938 (1892)]; Redmond v Lumber Co, 96 Mich. 545 [55 N.W. 1004 (1893)]. But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other."
Illustrative of the judicial philosophy of searching for factual support for plaintiff's theory is the case of Schedlbauer v Chris-Craft Corp, 381 Mich. 217; 160 N.W.2d 889 (1968). Plaintiff's pleasure boat was destroyed by a fire resulting from an engine room explosion. Plaintiff sued defendant for failing to warn boat owners that a diaphragm in the fuel pump could wear out and leak gas into the hold. The engine was not recovered. The Supreme Court held that plaintiff's testimony that the engine began to run "rough" shortly before the explosion and that it continued to run after the explosion made plaintiff's theory more likely than defendant's.
In reviewing the Michigan cases in this area, we find that proof of certain facts has consistently been held sufficient to prevent a plaintiff's theory from being characterized as "mere conjecture". Proof that a malfunctioning product is relatively new is frequently found to support an inference that a "defect" in the product caused that malfunction. See, Snider v Bob Thibodeau Ford, Inc, 42 Mich. App. 708; 202 N.W.2d 727 (1972) [Ford truck six months old]; Garmo v General Motors Corp, 45 Mich. App. 703; 207 N.W.2d 146 (1973) [Pontiac automobile four and one-half months old, driven about 8,000 miles]; Bronson v J L Hudson Co, 376 Mich. 98; 135 N.W.2d 388 (1965) [clothing claimed to contain chemical irritants bought one day prior to injury]; Caldwell v Fox, 394 Mich. 401; 231 N.W.2d 46 (1975) [Chevrolet automobile five weeks old]. A history of repair problems, traceable back to the time of purchase, associated with the malfunctioning part of the product has also been considered important. See, Snider, supra [brake problems soon after purchase continued for four months, until the accident]; Garmo v General Motors Corp, supra [car returned for brake problems several times soon after purchase].
Perhaps one of the most important factors is whether the part which fails is open and exposed, where it may be tampered with, or is sealed. In Meli v General Motors Corp, 37 Mich. App. 514; 195 N.W.2d 85 (1972), where the Court could find nothing to support the inference of a "defect", malfunctions inside a "sealed package" were distinguished:
"We are not confronted here with an enclosed part such as a brake mechanism or a fuel pump where it could logically be inferred that any defect was present when the automobile left the manufacturer. In cases where the defect is more or less in a `sealed package', it is more plausible to believe that the defect was caused by the manufacturer than to believe that the package was opened after sale, the defect caused independently, and then the package resealed." 37 Mich App at 519. That concept seemingly has been recognized sub silentio in several cases involving malfunctioning brake systems. See, Snider, supra, Garmo, supra, and Caldwell, supra.
In the present case, two of those three important factual patterns were shown to exist. The press was characterized as "relatively new" by plaintiff's expert, and that view was supported by the record. Secondly, there was direct testimony that the only part that could malfunction, the control mechanism, was located in a sealed container which had not been opened at the time of the accident. Defendant disputed that fact, but we must view the evidence most favorably to plaintiff. Under that standard of review, there was proof of the fact that the malfunctioning system was located in a closed box.
We conclude that the independent facts presented at trial lent sufficient support to plaintiff's theory of a "defective" product to take it beyond the stage of "mere conjecture". The trial judge committed no error by instructing the jury on a warranty theory.
This author should point out that in Kujawski v Cohen, 56 Mich. App. 533; 224 N.W.2d 908 (1974), following McKinch v Dixon, 391 Mich. 282; 215 N.W.2d 689 (1974), he found the following proof sufficient to go to a jury on a warranty theory: (1) that a malfunction in a product caused injury; and (2) that plaintiff's theory of a "defect" was consistent with the nature of the malfunction, although not more probable than defendant's theories.
The recent Supreme Court case of
Caldwell v Fox, 394 Mich. 401;
231 N.W.2d 46 (1975), seems to have retracted upon
McKinch and to have followed the proof requirements set forth in the body of this opinion. However, since we hold that plaintiff's proofs were sufficient even under those stricter standards, we need not reach that issue here. We leave that question open, although it seems to have been addressed by another panel of this Court in
Holloway v General Motors Corp, 60 Mich. App. 208;
230 N.W.2d 380 (1975).
II. Excessiveness of the Damages
The excessiveness of the damages awarded to plaintiffs in this case has been put directly in issue. Defendant argues first that the $1,750,000 award was clearly excessive, and then that even the $750,000 judgment entered after remittitur is excessive. Plaintiffs, pursuant to GCR 1963, 527.6, argue that the original verdict was supported by the evidence at trial. We agree with plaintiffs, and reinstate the original verdict.
The use of remittitur by the trial judge is well-established under Michigan law. Broadly defined, remittitur is the procedural process by which a verdict of the jury is diminished by subtraction. In the typical case, the plaintiff, on a motion by the defendant for a new trial because of an excessive verdict, is given an election to remit a portion of the amount or submit to a new trial. Where there are no other errors in the trial, remittitur can be ordered only if the verdict is so excessive as to "shock the judicial conscience", Stevens v Edward C Levy Co, 376 Mich. 1, 4; 135 N.W.2d 414 (1965), McKay v Hargis, 351 Mich. 409, 419; 88 N.W.2d 456 (1958), Asmus v Barrett, 30 Mich. App. 570, 578; 186 N.W.2d 819 (1971), Powers v City of Troy, 28 Mich. App. 24, 40; 184 N.W.2d 340 (1970).
Carlin, Remittiturs and Additurs, 49 W Va L Q 1 (1942).
Clearly, the trial judge is not empowered to go through de novo review of the verdict returned by the jury. The remittitur power should be exercised with restraint. The courts are even more reluctant to allow jury verdicts in personal injury cases to be disturbed. The rationale for that deference to the jury is found in the early case of Watrous v Conor, 266 Mich. 397; 254 N.W. 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. * * * Adopting defendant's contention 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 N.W. 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." 266 Mich at 401.
See also, O'Grady v Rydman, 347 Mich. 606; 81 N.W.2d 383 (1957), Cleven v Griffin, 298 Mich. 139; 298 N.W.2d 482 (1941), Morgan v Engles, 13 Mich. App. 656; 164 N.W.2d 702 (1968), shirley v The Drackett Products Co, 26 Mich. App. 644; 182 N.W.2d 726 (1970), and Dillard v Braunstein, 32 Mich. App. 216; 188 N.W.2d 203 (1971), for similar reasoning.
With the extra regard for the jury assessment in personal injury cases, the "shock the conscience" test becomes:
"`As long as the amount awarded is within the range of the evidence, and within the limits of what reasonable minds might deem just compensation for such imponderable items as personal injuries sustained and pain and suffering, the verdict rendered should not be set aside.'" Stevens v Edward C Levy Co, 376 Mich. 1, 5; 135 N.W.2d 414 (1965).
Once the trial judge has ordered remittitur, the test is whether he has abused his discretion, Dougherty v Rezolin, Inc, 48 Mich. App. 636; 210 N.W.2d 899 (1973). Yet the courts carefully scrutinize the trial judge's decision based upon the above-stated tests. The appellate courts have not been slow to find an abuse of discretion where the verdict was within the range of, and supported by, the proofs. See, for example, Stowers v Wolodzko, 386 Mich. 119; 191 N.W.2d 355 (1971), Stevens, supra, Majewski v Nowicki, 364 Mich. 698; 111 N.W.2d 887 (1961), and Soave Construction Co v Lind Asphalt Paving Co, 56 Mich. App. 202; 223 N.W.2d 732 (1974).
The original jury verdict of $1,750,000 for plaintiffs was supported by the record, and does not "shock" our "judicial conscience". The plaintiff John Pippen testified as to intense pain and suffering from his injuries, and Evelyn Pippen told of the problems that had resulted to their relationship as husband and wife. Counsel for plaintiff argued from a per diem formula for pain and suffering damages and loss of consortium, a method specifically approved in Michigan, Yates v Wenk, 363 Mich. 311; 109 N.W.2d 828 (1961), Crenshaw v Goza, 43 Mich. App. 437, 444; 204 N.W.2d 302 (1972). Defense counsel, for tactical reasons, did not argue the issue of damages to the jury.
We find that plaintiffs' testimony supported the per diem amounts suggested by plaintiffs' counsel. In light of today's economics, we cannot hold such amounts to be excessive as a matter of law. Using a perfectly proper mathematical formula, the suggested damage award was actually greater than the amount the jury returned. We think that this jury verdict which was in keeping with plaintiff's unobjected-to mathematical formula should not be set aside.
We must assume that the jury represented a cross-section of the community, with diverse experiences in life. It reached its unanimous decision after considerable deliberation. The jury had the benefit not only of listening to the testimony, but also close and extended observation of the plaintiffs and their relative vitality, energy, and seriousness of injuries.
Defendant attempts indirectly to "shock our judicial conscience" by emphasizing the size of the lump-sum amount. First, Denison argues that verdicts in other cases involving similar injuries have been less. We find the fact that a damage award is "precedent shattering" to be of little moment when the damages are in fact supported by the record, Williams v Department of State Highways, 44 Mich. App. 51; 205 N.W.2d 200 (1972). Second, Denison argues that even the $725,000 minus plaintiffs' costs can be invested to give them an income of $35,000 per year without touching the principal. We find that contention to be fully answered in Wry v Dial, 18 Ariz. App. 503, 514; 503 P.2d 979, 990 (1972):
We note in passing that in fact this verdict may not be out of line with recent verdicts in other cases. An award of $2,500,000 for pain and suffering has been upheld by one appellate court. See, Wry v Dial, 18 Ariz. App. 503; 503 P.2d 979 (1972).
"We know of no cases, and the appellants have cited none to us, which hold that the jury is to determine its award for pain and suffering by determining a lump amount which, when invested, will result in an annual amount which is at once just and reasonable. Nor have we found any cases which hold that the court is to determine whether an amount is excessive by determining its annual yield."
In conclusion, we find the damages awarded here to be within the fair scope of the evidence presented at trial. We are not persuaded by defendant's attempts to characterize the lump-sum amount awarded as some type of windfall to plaintiffs.
Remanded for reinstatement of the original jury verdict. Costs of this appeal to plaintiffs.
T.M. BURNS, J., concurred.