*1 96 Mich SZOPKO KINSMAN MARINE TRANSIT COMPANY 3, 1980, January Docket No. 78-2860. Submitted at Detroit. Decided 5, appeal applied March 1980. Leave to for. Szopko brought Wayne Frank J. an action in Circuit Court Company alleging liability Kinsman Marine Transit general admiralty injuries arising under and maritime law for out of jury the unseaworthiness of a vessel. The found for $180,000, plaintiff’s in the amount of but found that comparative negligence percent, reducing was 95 thus $9,000. jury award to After the verdict of the discharged, plaintiff returned and the learned that jurors engaged one in an off-the-record with judge. along Plaintiff filed a for motion mistrial supporting affidavits. A was held at Gribbs, J., which time Roman S. admitted that he had been approached by juror day during everyone one the trial after departed home, Judge disputed else had for Gribbs characterization of the contained in the affidavits and plaintiff produce subsequent asked that evidentiary hear- ing question plaintiff’s affiants so that question content could be resolved. Plaintiff’s presence counsel indicated that he would secure the persons hearing; however, these at the scheduled counsel failed to Judg- further for mistrial. ment was thereafter entered without the of the mo- having tion for appeals. mistrial been resolved. Plaintiff Held: 1. Conversation between a trial and a which during knowledge occurs the course of a trial without the parties frought outside the of counsel for the so is potential with the that a new trial is mandated moving party prejudice. even is unable to show actual Given the fact that reversal and remand for a new trial is [2] [3] [1] 58 Am Jur Am58 Am5 58 Am Jur Jur Jur 2d, Appeal 2d, 2d, 2d, References New Trial New Trial New Trial 51.§ and Error 622. §§ for Points in Headnotes §§ 16 et 16, 51. § seq., 51. Marine Transit v Kinsman judge admitted that the that the trial on the basis mandated informed, that counsel were not took conversation produce at the plaintiffs the witnesses failure consequential hearing, of the motion for abandonment with the *2 mistrial, right pursue the waiver of the did not constitute a hearing evidentiary appeal, would have question since the on being gesture futility, content of the conversation been a trial be of whether a new should irrelevant to the ordered. and remanded.
Reversed J., plaintiffs Bashara, He would hold that aban- dissented. mistrial, coupled plaintiffs of his motion for a donment appeal, provide constitutes a a sufficient record on failure to arising judge-juror out of the conversation. claim waiver He would affirm.
Opinion of the Court Jury Prejudice — Jury — — — New Trial. 1. Trial Contact with judge during a which occurs A between a trial knowledge and outside the the course of trial without parties mandates reversal and of counsel for the showing trial even in the absence of a remand for a new flowing dialogue. from the actual — Appeal — — for Mistrial Failure 2. Trial and Error Motion — Futile Acts. to Pursue Motion being said motion of a motion for a The abandonment juror, by upon and a based a between hearing evidentiary failing produce witnesses at a scheduled appeal arising right on error out of does not waive the to assert dialogue, judge-juror since the asserted error is of such gesture import would be a serious that an futility. by Bashara, Dissent J. Appeal — — — Failure to Pursue
3. and Error Motions Mistrial Appeal — — Record Waiver. Motion on for mistrial based The failure to continue to a motion trial, during upon which took a provide ruling a sufficient record a on the motion and to obtain arising appeal out of those constitutes a waiver of claim appeal. circumstances in the Jacques,
Leonard C. plaintiff. op Opinion (by Foster, & Meadows Ballard John Arthur Hamilton), Joseph McGovern, V. for defen- dant. Burns, P.J.,
Before: T. M. and Bashara N. J. JJ. Kaufman, brought
Per Curiam. Plaintiff an action general admiralty the defendant under and mari- alleging law, time unseaworthiness of vessel. $180,000. A However, found for in the sum of
they percentage also found that comparative negligence chargeable fault and appeals judg- Plaintiff from a 95%. awarding $9,000. ment him appeal The sole issue raised is whether a new granted upon trial should be the disclosure that he conversed with without *3 party. the of counsel for either appears judge engage It that did in an dialogue juror off-the-record during with an individual proceedings.1 the of course the The fact place light that this took did not come to reached, and, until after a thereafter, verdict was a motion for mistrial was filed. Raschke,
In Zaitzeff v 577; 387 Mich 198 NW2d (1972), Supreme jury the Court reversed a judge reporter verdict because court the en- jury portion tered the room to reread a of the trial testimony begun jury after the its delibera- require- tions. The Court reasoned that the formal prejudice ment that must be shown to warrant improper reversal under such circumstances was exactly since it is difficult to know what took judge jury when the entered the room. The same reasoning applicable is in the instant situation. This was neither transcribed nor recorded. Kinsman Marine Transit Opinion of the Court the herein is The substance of memory his of trial The stated controverted. the He indicated that record. the conversation juror juror merely him the had been told that the plaintiff and had seen the same bus with the get of enter hotel where a friend off and opined juror’s this that resided. However, little or effect. was of revelation question, provided by an affidavits investigator that indicate alternate may juror’s judgment have been colored reputation allegedly of hotel that he saw plaintiff enter. necessary In find it to reverse this cause.
We prejudice doing so, we not find that actu- do plaintiff’s position, ally inured nor do we to the part suggest on the that there was bias strong possi- judge. from the The error stems presented bility itself. A trial that engage judge simply not off-the-record should jury, members or individual discussions with protect present thereof, their are unless counsel clients’ interests.
Furthermore, that error was we do not find by plaintiff’s abandonment waived occurring chronology of events for a mistrial. precludes finding. Plaintiff did not such below until even become aware the communication in, after verdict came judgment Thus, not could was entered. brought most motion at have his mistrial opportune occur- time, the conversation i.e., after *4 in the red and while its substance was still fresh present, parties. at If or minds of counsel were im- conversation least informed of mediately occurrence, could its either counsel after arising steps any have taken to alleviate op Opinion steps therefrom continued. Such might have included: an examination of the panel determine whether the opinions and, so, communicated his to them had; what effect these communications a motion to dismiss individual and continue with the remaining jurors per 1963, 511.1; as GCR an im- legal mediate steps for a or other necessary. counsel deemed stage bring However, at the had to properly motion, a motion more labeled new trial motion rather prejudice than a mistrial improper caused communication damage. sys- would have its done Our adversarial designed representa- tem, to allow for the fullest party’s interests, tion each would not have been thereby. deprived served Counsel were of informa- necessary just tion an render effective and representation of their clients’ interests. colloquy plaintiff’s between the court and plaintiff’s
counsel, at time adjourned, motion for a mistrial was indicates the judge recognized apprising his error not counsel immediately. of the conversation stated: may "It it part be that was error of the Court report listen to the fail Juror and to it to Counsel which I I just oversight intended to do. It frankly. might think it be error.” harmless
Immediately following statement, expressed grav- his earnest desire to ascertain ity by directly examining plaintiff’s of his error subsequent hearing affiants on the mistrial subsequent hearing motion. The fact that this never held due to abandonment of his motion for a mistrial should not lessen the of the error that occurred. We find this error to be *5 Transit Kinsman Marine by Bashara, J. Dissent import. Ordinarily, for we would remand of serious hearing upon plaintiffs How- trial motion. new a case, a remand such ever, on the facts this gesture futility. was no record There abe would hearing, dialogue. made of the necessarily down into a consid- then, break would juror’s the other’s and word one eration pro- a authorize such trial court’s. We cannot the ceeding. remanded a new trial. and for
Reversed (dissenting). respectfully I dissent. J. Bashara, hearing the motion for At the following gave of the account incident: court point. I’ll inform this you COURT: "THE you approaching the Court have one Juror information day’s trial was correct to the conclusion after extent: Reporter left, my had he told Court everyone After something. I asked that he to tell me wanted remain, bring him in and to Reporter he my day chambers. He stated remain bus, leaving he was he noticed a bus and as was on departed, heading the same He Plaintiff was on bus. hotel, did, departed heading Plaintiff and toward Reporter Court can his home. I also recall and the for verify this, that he something he said effect that hotel, he had living friend in the same but that had a that was unaware seen the Plaintiff there and never That the sum where the Plaintiff lived. that was matter. substance of the it and excused you reporting "I told him thank him. the next frankly "I intended inform Counsel feeling it was without
day of the statement that I had the inadvertently not do so. or effect did if I had done so." Reporter the record to see Court search he that wished The trial then stated 96 by Bashara, J. Dissent juror, examine the and an alternate whose supporting juror’s affidavit statement was also set, A filed. date for the next failed to never evidentiary ruling obtained on the matter. hearing, plain As stated at the *6 allegations tiff’s confirmed, which, raise serious
might
necessitate
new trial. Fisher v
Bernard,
(1971),
(1910).
386
182;
Mich
I would affirm.