Lead Opinion
Richard L. Reetz commenced this action against Kinsman Marine Transit Company to recover for injuries he sustained in September, 1974, while employed as a deckhand aboard Kinsman’s vessel the Merle McCurdy. At that time, while engaged in a procedure to open the hatches on the vessel, Reetz fell backwards into an open hatch and plummeted approximately 40 feet to the steel deck below.
Reetz alleged under the Jones Act, 46 USC 688, that his injuries were caused by Kinsman’s negligence in failing to properly train Reetz or, alternatively, that Kinsman was liable because of the vessel’s unseaworthiness.
In closing argument, Reetz’s attorney argued that Reetz’s loss of earnings and earning capacity amounted to $400,000, while all his other damages would justify a total award of double that amount. Kinsman, however, argued that because Reetz was still employable the most he should recover was $40,000.
The jury returned a verdict of $800,000.
Kinsman’s motion for new trial was denied, and it appealed, claiming that the conduct and argument of Reetz’s counsel was so inflammatory that it denied Kinsman a fair trial. The attention of the Court of Appeals was directed to four areas of alleged misconduct: references to Reetz’s ineligibility for workers’ compensation or any other benefits; repeated references to multi-million dollar awards in other cases; unfounded allegations of cover-up and perjury; and undue emphasis on Kinsman’s corporate nature and its wealth as well as the wealth of George Steinbrenner, III, chairman of the board of its parent corporation._
Reetz claims that the Court of Appeals erred because these issues were not properly preserved for appellate review, and even if they were properly considered none of the arguments amounted to error requiring reversal.
We find that, although the issue of the propriety of the arguments was not preserved by a request for a specific instruction or a motion for mistrial so as to guarantee Kinsman a right to review, some of the arguments were so improper that it was within the discretion of the Court of Appeals to review the record to assure that Kinsman obtained a fair trial. We further find that the arguments relating to multi-million dollar verdicts and the wealth and callousness of Kinsman were so improper and inflammatory that Kinsman was denied a fair trial. A new trial is required. Accordingly, we aifirm the Court of Appeals, although on somewhat different grounds.
I
Reetz contends that the Court of Appeals should not have considered any of the claimed errors because they were not properly preserved for appellate review. The cases cited by Reetz in support of this argument stand for the proposition that a litigant has no right to appellate review unless he has requested a curative instruction or made a
Our prior cases have clearly stated that incurable errors are not shielded from appellate review because an attorney fails to request what in that case would be a futile instruction.
Some of our earlier cases have indicated that if an error is incurable, the party claiming prejudice should move for a mistrial.
When reviewing an appeal asserting improper
In the instant case some of the alleged errors were incurable,
II
A. Improper Reference to Workers' Compensation Beneñts
In his opening argument, Reetz’s attorney made the following statement:
"Now all of us are familiar with the concept of workman’s compensation, because this is the remedy for a person who is working as an employee in a landlocked or shore-site employment situation * * *. [A] seaman is excluded from the general category of employees, * * * he has no right to any kind of compensation.”
This statement was improper for two reasons. First, our prior cases have made it clear that it is not relevant whether or not a plaintiff seeking recovery for personal injury has other remedies available and, therefore, the topic should not be raised before the jury.
If these were the sole errors committed, we
The incorrect portion of the statement is also not a basis for reversal in this case because during examination of one of Kinsman’s witnesses, the facts that Reetz had a right to maintenance and cure and that Reetz did receive such payments were clearly brought out. Any prejudice caused by the statement was thereby cured and the error rendered harmless.
B. References to Large Awards in Other Cases
During his closing statement, Reetz’s attorney referred to multi-million dollar verdicts in other cases.
The arguments complained of include the following references:
"Now I know, for example, circumstances when we talk about in terms of 'six million dollar man’. * * * All we can do is go by history and what they have. In other words, what is it when you take away a man, all of his senses, all of his ability to move, a quadriplegic, loss of both arms and legs and this kind of thing, we have a circumstance where this could be up to a $7,000,000 award.
"So what are you dealing with? Well, you’re dealing with a man that we know. We read the papers; we*106 know what happens; a person commits — tries to commit suicide and they don’t get enough oxygen and they come back with over a $3,000,000 award.”
Although these arguments were objected to and the objection sustained, in his rebuttal, Reetz’s attorney continued the references.
Such references are improper and should not be permitted.
C. Claims of Cover-up and Perjury by Kinsman and Its Witness
Kinsman claims that Reetz’s attorney caused error requiring reversal during closing argument by alleging that Kinsman was engaged in a coverup to protect itself, and that its chief witness, first mate Ewers, had committed perjury. These statements were made in two installments; the first came during initial closing argument, the second during rebuttal.
The first set of statements includes:
"And one thing about that first mate, he didn’t look you in the eye. He didn’t look you in the eye, but there is a reason for it.
"I can see where this man, this first mate could become a little irritated like he obviously was and like he admitted that he was. But, you see, he wasn’t just a witness; he was an advocate * * *. And they bring this man in. They pay him, pay his relief, and put him up in a hotel, and pay the air fare. There’s no question about that. But he comes here * * * as ¿n advocate.
*108 "And obviously there was dereliction on the part of that man [Ewers] out there. And that dereliction didn’t come out until I put the cross examination to him when he got so excited.”
The rebuttal set is made up primarily of the following:
"If there is one thing we know in our nation today, it is that word 'credibility’, and we know that word from Watergate * * *. And it’s one thing for them — for a shipowner defendant to try to cover up its tracks like a polar bear out there in the snowstorm at the North Pole, this kind of thing. They can cover them; they’re there, but you can find them and they have the upper hand.
"And this fellow, Ewers, up there that he wants you to consider his credibility and so do I, and there is a man who starts walking around and making a determination, trying to cover up his tracks, coming all the way down here. And it isn’t a matter of 'Will you come?’ * * * But Steinbrenner is the one who has the ship company, and he says in essence, 'All right’, he says, 'come on, get down there and testify again.’
"And you know what; [Ewers’ testimony is] not true. You know why this is not true?
"You see, because [it] was not substantiated by either one of those other two men.”
We find that these arguments are proper under the circumstances of this case and will not serve as grounds for reversal.
The first group of statements merely comment on the demeanor of the witness
The second group is no more harmful; when read as a whole, it is simply argued that Ewers and Kinsman were not presenting the truth, because, if they were, Kinsman would have produced the other witnesses to the incident.
Also, it is legitimate to point out that an opposing party failed to produce evidence that it might have, and consequently the jury may draw an inference against the opposing party. This is permissible even though the same witnesses could have been produced by both parties.
Kinsman further claims that Reetz’s lawyer inflamed the passions of the jury against Kinsman by constantly stressing the corporate nature, wealth, power, and insensitivity of Kinsman.
Comments made during closing argument which fall into this category include a claim that Reetz’s attorney is dedicated to representing only individuals and not corporations,
Our prior cases should have made clear that even isolated comments like these are always improper, even if not always incurable or error requiring reversal.
"We believe the record in the instant case shows a deliberate course of conduct on the part of counsel for plaintiff aimed at preventing defendant from having a*112 fair and impartial trial. We think the course of misconduct was so persistently followed that a charge of the court in an effort .to obviate the prejudice would have been useless.”
Thus, although no objection was made to these comments, a new trial should be ordered.
Affirmed.
Notes
The issue of seaworthiness is separate from negligence alleged under the Jones Act. A seaworthy ship is one where no defective condition exists in the "equipment, appurtenances, crew, cargo or
The only other evidence relating to the practice of sailors on the vessel was introduced by deposition of James Dale Mitchell, a seaman on the Merle McCurdy and an admitted close friend of Reetz. The contents of the deposition were not recorded, but apparently Mr. Mitchell testified that it was common practice for sailors on the Merle McCurdy to walk forward and backward on the hatches while opening them.
Reetz has cited the following cases in support of his argument: Koepel v St Joseph Hospital,
A review of these cases demonstrates that the errors raised were either harmless or curable. Indeed, the Court in Koepel noted the distinction:
"Definitely, there is not here before us that kind of jury argument which is so prejudicial as to be beyond repair — by curative instruction. Such an argument was held to warrant reversal, though no curative request was made, in Steudle v Yellow & Checker Cab & Transfer Co,287 Mich 1 ;282 NW 879 (1938).”
Other civil cases allowing review although the issue had not properly been preserved at the trial level include Sauve v Carling Brewing Co, Inc,
Cf. Solomon v Stewart,
For non-Michigan authorities, see the cases cited in 4 CJS, Appeal and Error, § 245, fns 93-98, pp 763-764; § 297, fns 32-32.5, p 918, and 5 Am Jur 2d, Appeal and Error, § 549, fns 12-14, p 34.
Because incurable error occurred in the instant case, we need not reach the questions whether and under what circumstances an appellate court may review curable, but not properly preserved, error.
Koepel, fn 3 supra, p 443; Thelan, fn 3 supra, p 28; Herbert, fn 3 supra, p 166.
This Court has noted that in determining whether error is harmless two questions are pertinent. "First is the error so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless? * * * Second, if not so basic, can we declare a belief that the error was harmless beyond a reasonable doubt?” People v Robinson,
An appellate court should not require that an appellant "demonstrate affirmatively prejudice” to his cause. If on the record an appellate court is "not able to say that the jury was not diverted from the merits * * ”, nor could [they] say that the 'mischief done’ was cured by the judge’s efforts”, then a new trial should be ordered. Wayne County Road Comm’rs v GLS LeasCo, Inc,
It should be noted here that the trial court has a duty to assure that all parties who come before it receive a fair trial. Consequently, if counsel exceeds the proper bounds of argument, a judge should interrupt to correct counsel and take any curative measures which are necessary. See cases cited in 75 Am Jur 2d, Trial, § 211, p 294, fn 59.
See below, sections IIB and HD.
See below, section HA.
See below, section IIC.
Hill v Harbor Steel & Supply Corp,
See, also, Kemp v Mutual of Omaha Ins Co,
According to undisputed testimony presented at trial, the maintenance and cure benefits amounted to $8.00 a day and were paid under a labor agreement entered into by Kinsman and its employees.
See Vanden Bosch, fn 13 supra.
Reetz’s attorney also mentioned in his closing argument that plaintiff "doesn’t have workman’s compensation”, but this additional reference was not enough to make the error incurable.
The improper references in the rebuttal included the following:
"I’ll say this: We know about millions of dollars being awarded for certain kinds of injuries; we know of that kind of thing; we know of millions of dollars being awarded for injuries.
"You know, for example, that in order to compensate someone for losses, you have to speak in terms of large denominations. And those large denominations don’t, within the purview of our knowledge, reach into the areas of millions of dollars.”
Both of these references were objected to and the court advised Reetz’s attorney not to refer to verdicts in other cases, yet in his subsequent efforts to "withdraw” these references, Reetz’s attorney only compounded the error by mentioning million-dollar verdicts three more times.
Finn v City of Adrian,
Richardson v Nelson, 221 Ill 254;
See, e.g., Louisville & N R Co v Pointer’s Adm’r, 113 Ky 952;
As stated by this Court in GLS LeasCo, fn 8 supra, p 139:
"A substantial doubt regarding fairness of the trial has been raised by the egregious and repetitive nature of the misconduct of the [appellee’s] lawyer. On this record, we are not able to say that the jury was not diverted from the merits by the repetitious aspersions, nor could we say that the 'mischief done’ was cured by the judge’s efforts. To say * * * that [appellant] must 'demonstrate affirmatively prejudice’ is to misstate the test if not misplace the burden.
"It cannot be demonstrated what effect any particular statement has on a jury. Neither [appellant] nor any other litigant similarly situated can properly be expected to 'demonstrate affirmatively’ a prejudicial effect on the jury resulting from improper remarks of opposing counsel.”
As this Court stated in Smith v Jennings,
"Counsel may, acting on their own judgment as to propriety and good taste, discuss the character of witnesses, the probability of the*109 truth of testimony given on the stand, and may, when there is any reasonable basis for it, characterize testimony.”
Accord, Commonwealth Electric Co v Rose, 214 Ill 545;
Ewers testified that just prior to the accident he had instructed Reetz with two other seamen present that one should never walk backwards on the hatches while attaching a cable to them in order to open them. Reetz testified that no such instructions were ever given. Reetz’s attorney commented on the fact that neither of these other seamen were called as witnesses although at the time of trial one of them worked on the same vessel as Ewers.
Fishleigh v Detroit United Ry,
Since there was no proof that either of these other alleged witnesses was not available to Reetz, Kinsman’s attorney could have commented on Reetz’s failure to produce them. Barringer v Arnold,
"You see, I’ve dedicated my life to protecting the valuable lives of people; individuals, not corporations; but individuals and small businessmen.”
"[T]he shipowner has no concern; they still have no concern. * * * I want to tell you one thing. [In] this case * * * they’re trying to stamp him out.”
"That shipowner has two batteries of lawyers * * *. And the shipowner is able to get the very best of anything it wants, and at this juncture it has the very best of attorneys. It didn’t want to do the very best it could have done for the plaintiff seaman. But now it’s doing the very best it can do.”
At different points in his closing argument, Reetz’s attorney made the following comments:
"Steinbrenner — I don’t care what they say — Steinbrenner is the man behind all this, both the shipping companies * * [Reference to defendant corporation and present corporate owner of the ship on which plaintiff was injured. No evidence of this connection was presented at trial.]
"And it isn’t a question of 'Will [Ewers] come [to testify]?’ I mean, no matter how he puts it, Steinbrenner, I imagine Steinbrenner feels pretty good. His Yankees won last night. But Steinbrenner is the one who has the ship company, and he says, in essence, 'All right,’ he says, 'Come on, get down there and testify again.’
"And there is a conglomerate of circumstances with Kinsman Marine Transit Company. Steinbrenner is over there owning a baseball team, and Rick can’t even play kitten ball.”
Herbert v Durgis,
Sauve v Carling Brewing Co, Inc,
See fn 4 supra.
Concurrence Opinion
I concur because I am persuaded that the challenged statements of plaintiffs trial counsel, taken as a whole, demonstrate a deliberate and calculated effort to prejudice the jury._