*1
Reetz
Marine
Transit
Kinsman
REETZ
MARINE TRANSIT
v KINSMAN
COMPANY
application by
No.
Decided December
1982.
Docket
63857.
On
the
Court,
appeal,
Supreme
plaintiff for leave to
the
of
lieu
granting
appeal,
leave to
affirmed the decision of the
of
Court
Appeals and remanded the case for a new trial.
brought
against
an
Richard L. Reetz
action
Kinsman Marine
Company
injuries
for
sustained as a deckhand aboard
Court,
Wayne
of
The
one Kinsman’s vessels.
Circuit
L.
Roland
Olzark, J.,
judgment
entered
on
verdict
a
for Reetz. Kinsman
appealed, claiming
argument
the
conduct and
of Reetz’s
Appeals,
counsel denied it a fair trial.
Court
The
of
R. M.
Maher, P.J.,
Moore, JJ.,
and Bronson and
re-
reversed and
unpublished opinion per
manded the case for a new trial in an
(Docket
78-1856).
plaintiff
ap-
curiam
No.
seeks leave to
peal.
curiam,
opinion per
signed by
Fitzgerald
In an
Chief Justice
Williams, Levin, Coleman,
Kavanagh,
Riley,
and Justices
Supreme
the
Court held:
Although
propriety
arguments
the issue of the
of the
was not
preserved by request
specific
a
for a
or a
for
instruction
motion
review,
guarantee
right
mistrial
to
so as
some
the
arguments
improper
were so
that was
the
within
discretion
Appeals
to
Court
review the record to assure a fair
Arguments by
plaintiff
improper
trial.
for
counsel
the
so
were
inflammatory
deny
as to
trial.
defendant
fair
appellate
may
judgment
1. An
court
reverse the
of a trial
by
parties
court where
conduct
one
both
influenced
trial,
though
party seeking
outcome
even
review
preserve
appellate
attempt
did not
by
review an
appellate
cure the error in the
court.
trial
First the
court must
error, and,
alleged
determine whether the error
was
if
in fact
so,
preserved
whether it was harmless. If
the error was not
review,
reviewing
court must determine whether the result
may
party
have denied a
a fair
Tainted
need not
trial.
verdicts
be allowed
stand
because counsel or the trial court or both
protect
party by timely
failed to
the interests of a
action.
case, frequent
2.
plaintiff’s
In this
references
counsel
improper,
to multi-million dollar awards in other cases were
Law Offices of Leonard C. P.C. Leo- Jaques), plaintiff. nard C. for the (by Foster, Meadows & Ballard John Arthur Hamilton) (by Creighton and Miller & Stillman E. Miller) for the defendant. Per Curiam. Richard L. Reetz commenced this against action Company Kinsman Marine Transit injuries September, to recover for he sustained in employed 1974, while aas deckhand aboard Kins- McCurdy. man’s vessel the Merle time, At that engaged procedure open while in a the hatches open vessel, on the Reetz fell backwards into an plummeted approximately hatch and 40 feet to the steel deck below. alleged
Reetz Act, under the Jones 46 USC injuries negli- that his were caused Kinsman’s gence failing properly or, train Reetz alterna- tively, that Kinsman was liable because of the vessel’s unseaworthiness.1 Kinsman countered that separate 1 The issue of negligence alleged seaworthiness is from under condition exists in seaworthy ship the Jones Act. A is one where no defective "equipment, appurtenances, crew, cargo Reetz v Kinsman Marine the accident occurred because of Reetz’s negli- own failing to follow direct orders from gence his mate not to walk backwards on first the hatches trial, opening while them. At testimony Reetz and first mate directly conflicted as to given. whether such orders were ever No other testimony relating alleged orders was pre- sented.2 closing argument,
In Reetz’s attorney argued earnings that Reetz’s loss of earning capacity $400,000, amounted while all other damages justify would total award of double that amount. Kinsman, however, argued that because Reetz was employable still the most he should recover was $40,000. $800,000. jury returned verdict denied,
Kinsman’s motion for new trial was *3 appealed, claiming it argu- that the conduct and ment of Reetz’s counsel was so inflammatory it denied Kinsman fair trial. The of attention Appeals Court of was directed to four areas of alleged ineligibil- misconduct: references to Reetz’s ity compensation workers’ any or other bene- fits; repeated references to multi-million dollar awards cases; other allegations unfounded of cover-up and perjury; emphasis undue on corporate Kinsman’s nature and its wealth as well III, as the George Steinbrenner, wealth of chair- man the board parent of its corporation._ gear ship”. Co, Steamship App Shemman v American Barge Corp, Earles v Union Line (CA 1973). 1097, F2d only relating practice The other evidence to the of sailors on the deposition Mitchell, vessel was introduced of James Dale seaman McCurdy on the Merle and an admitted Reetz. close friend of deposition recorded, apparently contents of the were not but Mr. practice Mitchell testified that it was common for sailors on the Merle McCurdy opening to walk forward and backward on the hatches while them. unpublished opinion, Appeals
In an the Court of though any improper held that even one of the arguments alleged may not have been inflamma- tory overly prejudicial, they "taken as a whole attempt demonstrate a deliberate and calculated jury” require and as such a new trial. Appeals
Reetz claims that the Court of erred properly preserved because these issues were not appellate prop- review, for erly and even if were arguments
considered none of the amounted requiring to error reversal. although propriety that,
We find the issue of the arguments preserved by request was not specific for a instruction or a motion for mistrial guarantee so as to review, Kinsman a arguments improper some were so Appeals was within the discretion of the Court of to review the record to assure that Kinsman ob- tained a fair trial. We further find that the
argu- relating ments to multi-million dollar verdicts and the wealth and callousness of Kinsman were so inflammatory that Kinsman was required. denied a fair A trial. new trial is Accord- ingly, Appeals, although we aifirm the Court on
grounds. somewhat different
I Appeals Reetz contends that the Court of should not have considered of the claimed errors *4 properly preserved ap- because were not for pellate support review. The cases cited Reetz argument proposition of this litigant stand for the that a appellate
has no
review unless he
requested
has
a curative instruction or made a
101
Reetz
v Kinsman
Marine
Nevertheless,
for
motion
mistrial.3
the rule is not
review,
preclude
an absolute bar
does not
court
appellate
correcting
an
from
er-
substantial
preserved
which were not
in the
rors
trial court.
prior cases
Our
have
stated that
clearly
incura
errors
ble
are
shielded from appellate
review
request
because an
fails to
attorney
what
in that
case would
a futile
be
instruction.4 The “no objec
3
following
support
argument:
Reetz has cited the
in
440,
cases
Koepel
Joseph Hospital,
442-443;
v St
381 Mich
tion—no error rule —no counsel to seek to have error cured before the case jury. is submitted to the When a cure is not ***5 feasible, rule need not be invoked.* Where by parties conduct one or both influences appellate may trial, the outcome of a reverse seek to cure the error. an court although appellant’s attorney did not Some of our earlier cases have if indicated that claiming party incurable, an error is Although should move for a mistrial.6 tion is may such a mo- appropriate, mandatory. party it is not A money have such an investment in time and point in a trial at the that he would rather see the case when incurable error arises go jury, to the hoping improper argument. jurors ignore will be able to eminently Such a decision is litigant reasonable, both for the individual and the judicial system as a whole. A trial which has private public consumed valuable resources jury may need not be aborted because the have improperly closing been influenced or distracted argument. reviewing appeal asserting improper
When
an
(incurable error;
spite
cure,
of effort
trial court to
trial
new
Fowler,
(1895)
ordered); People
(same); Kakligian
449, 453;
v
Mich
In the
alleged
instant
case some of the
errors
incurable,10
curable,11
were
others
and still others
determining
This Court has noted that in
whether error is harm
questions
pertinent.
less two
are
"First is the error so offensive to the
judicial process
regarded
maintenance of a sound
that it never can be
* * * Second,
basic,
as harmless?
if not so
can we declare a belief that
beyond
People
the error was harmless
a reasonable doubt?”
v Robin
son,
(1972).
II Improper Compensation A. Reference to Workers' Beneñts opening argument, attorney
In his Reetz’s made following statement: "Now all of us are familiar with concept compensation, workman’s remedy because this is the person working for landlocked or who employee is as an ** employment shore-site situation *. general seaman is excluded from the category [A] * * * employees, pensation.” he has no kind of com- This statement was for two reasons. prior First, our cases have made it it is clear that *7 plaintiff seeking not relevant whether or a not recovery personal injury for has other remedies topic and, therefore, available raised be should not jury.13 Second, before the the last sentence simply of the statement untrue; is Reetz was enti- tled to receive maintenance and cure benefits.14
If these committed, were sole errors we NW2d 101 543, 555-556; Gravel NW2d 696 (1958). 54 See, also, Kemp [12] 13 (1965); Hill v Harbor Steel & See Co, below, Leitelt (1963); 42 Mich section IIC. Lebel v Vanden v Ins Mutual of Omaha Iron App 722, 736; Works Swincicki, Bosch Consumers Supply (1974); v v Corp, DeVries, NW2d Vanden 374 Co, Mich 369 Mich Power Berg Co, v Grand 47, 57-58; 93 NW2d 359, 366; 56 132 NW2d Rapids App 119 14According undisputed testimony trial, presented to at the mainte nance and day paid cure benefits $8.00 amounted to a and were under agreement by a labor employees. entered into Kinsman its Reetz Marine Kinsman new The prejudice remand for a trial. would not compensation reference to workers’ by caused cured an instruction from the could have been effect sympathy bench to the Such must not influence decision.15 a jury’s error readily generally cured will be reviewed In properly preserved appeal. unless this in- was no objection stance there the statement. portion is incorrect statement also not a basis for in this case during reversal because witnesses, examination of one of Kinsman’s facts Reetz had maintenance cure that Reetz did receive such payments were brought Any out. clearly prejudice caused by thereby statement was cured and the error rendered harmless. Large
B. References Awards in Cases Other statement, During closing his Reetz’s attorney referred to dollar multi-million verdicts other cases.
The arguments complained of include follow- ing references: know, "Now I for example, circumstances when we * * *
talk about in terms of 'six million dollar man’.
go
All
other
of his
loss of
we can do is
history
and what
have. In
words,
man,
what is
you
away
when
take
all
senses,
ability move,
all of
quadriplegic,
legs
thing,
both arms and
and this kind of
we
have a
up
circumstance where this could be
to a
$7,000,000 award.
you
Well,
"So what
dealing
dealing
are
with?
you’re
with a man that
papers;
we
We
know.
read the
we
Bosch,
supra.
See
fn
Vanden
*8
attorney
closing argument
plain-
Reetz’s
also mentioned in his
tiff
compensation”,
"doesn’t have workman’s
but this additional refer-
enough
ence was not
to make the error incurable.
106 happens; person commits —tries to commit know what enough get oxygen they don’t suicide and $3,000,000 come with over a award.” back these Although arguments were to and objected sustained, rebuttal, in objection Reetz’s attorney continued the references.16 In one form or another, attorney managed Reetz’s to mention times, though million-dollar awards seven even objections arguments these were made on four sustained occasions. improper
Such references are
and should not be
A
permitted.17
one-time casual or vague reference
large
verdict
may
another
case
not be
prejudicial
require
sufficiently
a new trial.18
Also, immediate
instruction
the court may cure
case,
In
however,
error.19
this
judge
failed
to instruct
jury
ignore these references and
the references were so numerous
it is
doubt-
ful any instruction
have
would
been effective._
following:
references in
rebuttal
included the
say
being
"I’ll
this: We know about millions of dollars
awarded for
injuries;
thing;
certain kinds of
we
of that
know
kind of
we know of
being
injuries.
millions of dollars
awarded for
know,
example,
compensate
"You
that in order to
someone for
losses, you
speak
large
have to
in terms of
denominations. And those
large
don’t,
purview
knowledge,
denominations
within the
our
reach into the areas of millions of dollars.”
objected
Both of these references were
to and the court advised
attorney
cases,
Reetz’s
subsequent
yet
not to refer to verdicts in other
in his
references,
efforts to
attorney
these
"withdraw”
Reetz’s
only compounded
by mentioning
the error
million-dollar verdicts
three more times.
Adrian,
(1892).
City
Finn v
NW
Finn
Michigan
only
issue,
is the
specific
case to deal with this
but other
See,
state
generally,
courts have come to the same conclusion.
Anno:
Propriety
prejudicial
effect
of reference
counsel
civil case to
cases,
amount of verdict in similar
15 ALR3d
1146-1149.
Nelson,
Richardson v
221 Ill
Kinsman claims that Reetz’s caused requiring during closing argument error reversal by alleging engaged that Kinsman was in a cover- up protect itself, witness, that its and chief first perjury. Ewers, mate had committed These state- ments installments; were made two the first closing argument, during came initial the second during rebuttal.
The first set statements includes: mate, thing one "And about first he didn’t look you in eye. you eye, the He didn’t look in the but there is a it. reason for man,
"I where can see this this first mate could a obviously become little irritated like he was and like But, see, he admitted that you just he was. he wasn’t a * * witness; bring he was an advocate *. And this him, relief, pay man in. They pay put inup him hotel, pay question the air fare. There’s no about ** * ¿n that. But he comes here as advocate. LeasCo, by supra, p As stated this Court in GLS fn 8 139: regarding "A substantial doubt fairness of the trial been has raised by egregious repetitive nature of the misconduct of the [appellee’s] record, lawyer. say On this we are not able to that the jury was not repetitious aspersions, diverted from the merits say nor could we judge’s that the 'mischief done’ was cured ** * say [appellant] affirmatively efforts. To must 'demonstrate prejudice’ is to misplace misstate the test if burden. any particular "It cannot be demonstrated what effect statement jury. [appellant] on litigant similarly has Neither nor other properly expected affirmatively’ situated can prejudicial be 'demonstrate jury resulting effect on the from remarks opposing counsel.” part obviously dereliction on
"And there was And that dereliction didn’t out there. that man [Ewers] him examination to when put until I the cross come out he got so excited.” up primarily is made
The rebuttal set following: today, it thing
"If we know in our nation there is one know that word from 'credibility’, that word and we is Watergate shipowner polar Pole, *10 * * thing a its tracks like a *. And it’s one for them —for up try defendant to to cover in the snowstorm at the bear out there North them; thing. They they’re can cover this kind of there, hand. upper you they find them and have the but can Ewers, fellow, up you "And there that he wants this I, credibility and do there is a to consider his so and walking making man who starts nation, around and a determi- tracks, coming trying up to cover his all the way come?’ ship company, says, you here. And it isn’t a matter of down 'Will * * * But is the one who has the Steinbrenner essence, right’, says and he 'All he on, get again.’ testify 'come down there and what; you testimony "And know true. [Ewers’ is] why You know this is not true? see, "You because was not substantiated either [it] one those other two men.” arguments We find that these under proper are the circumstances of this case and will not serve as grounds for reversal. group
The first merely statements comment on the demeanor of the point the witness21 and out Jennings, As this Court stated in Smith v (1899): NW 236 may, acting judgment propriety "Counsel on their own as to good taste, witnesses, probability discuss the character of the Reetz v Kinsman Marine may possibility since, that he be biased as demon- during wages expen- trial, strated the his the testifying paid by he incurred for ses were all employer. Such are well comments within the propriety supported by bounds the evidence presented in court. group is harmful; second no more when argued simply whole,
read as a
it is
that Ewers and
presenting
truth, because,
Kinsman were not
the
produced
were,
if
Kinsman would have
If,
case,
other witnesses
incident.22
as
this
testimony
plaintiff directly
of a witness for the
testimony
contradicts the
defendant,
of a witness for the
is
and there
no reason to
believe
made,
an honest mistake has been
so that one
fabricating,
witness must be
each counsel has the
argue
speaks
that his witness
the truth
presents
while
other
a fabrication.23
legitimate
point
oppos-
Also, it is
out that an
ing party
produce
might
failed
evidence that
consequently
jury may
have, and
draw an
against
opposing party.
per-
inference
is
This
though
missible even
the same witnesses could
produced
*11
have been
both parties.24_
stand,
testimony given
may,
truth of
reasonable
on the
and
when
is
there
it,
testimony.”
basis
characterize
Accord,
Rose,
545;
Commonwealth
v
Electric Co
214 Ill
Kinsman further
against
passions
jury
Kinsman
flamed the
corporate
stressing
by constantly
nature,
insensitivity
power,
wealth,
Kinsman.
during closing argument
made
which
Comments
category
into this
include a claim that Reetz’s
fall
representing only
attorney is dedicated to
individ-
corporations,25 that
uals and not
Kinsman cared
nothing
welfare,26
about Reetz’s
that Kinsman can
everything,27
repeated
afford the best of
refer-
George Steinbrenner,
III,
owner of the
ences
York
and chairman of
New
Yankees
the board of
parent corporation, although
Kinsman’s
he was
personally
party
not
in the case.28_
594, 601-605;
(1960); Grubaugh City
Our
cases should have made clear
even isolated comments
like these are
im-
always
proper, even if not always incurable or error
re-
However, when,
quiring
case,
reversal.29
as in this
the theme is constantly repeated so that
the error
indelibly impressed
becomes
on the juror’s con-
sciousness,
the error becomes
incurable
and re-
quires reversal.30 We find the following statement
from Steudle v Yellow & Checker Cab & Transfer
Co,
1, 11-12;
(1938),
287 Mich
"We believe the record in the instant case shows a
deliberate course of conduct
part
on the
of counsel for
plaintiff
preventing
aimed
having
at
defendant
from
Durgis,
158,
(1936) (wealth
Herbert v
165;
276 Mich
fair and duct trial. We think the course of miscon- persistently was so charge followed that a court in an effort .to obviate the would have been useless.” Thus, although no objection was made to these comments, a new trial should be ordered.31
Affirmed.
Fitzgerald, C.J., Kavanagh, Williams, Levin, Coleman, Riley, JJ., concurred.
Ryan, J. I concur because I persuaded am the challenged plaintiffs statements trial coun- sel, whole, taken as a demonstrate a deliberate and calculated effort to prejudice the jury._ supra. See fn 4