Clark v. Grand Trunk Western Railroad , 367 Mich. 396 ( 1962 )

Dethmers, J.

Plaintiff, a young woman, was assaulted, stabbed, and robbed by 2 assailants, while she sat alone in defendant’s depot, sometime past midnight, after having alighted from defendant’s train on which she had been a passenger for hire. She sued for damages resulting from her injuries. She appeals from judgment for defendant based on jury verdict of no cause for action.

The case was tried in a relatively small county-seat town. On the day trial commenced an article about the case appeared in the local newspaper, containing the following:

“$1.20 TRAIN TICKET &

“$90,000 DAMAGE SUIT

“* * * It is the first case of its kind, a railroad attorney said, ‘And,’ he added, ‘when a $1.20 ticket costs us a $90,000 lawsuit it’s another good reason why the railroads want to get out of the passenger 'business.’ ”

Defendant says that this news story was probably based upon statements made by defendant’s counsel during pretrial proceedings some 3 months before trial. Shortly after the pretrial a like story had appeared in the same newspaper. The article, printed on the day trial commenced, came to the attention of the trial judge who thereupon cautioned the jury not to read the story until after they had decided the case and, if possible, to avoid reading that paper until later.

Thereafter, when Mr. Opperthauser, defendant’s attorney, was making his closing argument to the jury, he made the statements as quoted below and the following occurred:

“In law this type claim as presented by Mr. Dean would be known I believe, as a precedent setting case and I want to point out to each and every one of you that' you are here to decide this case and your decision can make law.

“Mr. Dean (attorney for plaintiff): I think this is highly improper.

“The Court: There is nothing before us to indicate that, Mr. Opperthauser.

“Mr. Opperthauser: All right, Tour Honor, regardless of precedent setting or not, it’s the first case of this type to be tried and could be of far reaching importance.

“Mr. Dean: That isn’t true. There have been many cases similar to this and this is improper argument.

“Mr. Opperthauser: You haven’t shown any to the court and I haven’t yet run across any. Regardless of whether or not we are right or wrong, the point I want to make is this. What effect would a decision for the plaintiff in this case have upon business and upon you as individuals, as owners of businesses, as farmers, as owners of property?

“Mr. Dean: Your Honor, I feel that he is attempting to appeal to something which has nothing to do with this case. I don’t think the jury will he moved by it bnt still I think it’s highly improper.

“The Court: I think I would class it as improper .argument.”

We may, if for no other reason than our familiarity with the subject stemming from the several cases recently before us involving the rights of railroads to terminate passenger service on poorly patronized lines between relatively small population centers (see Chicago & North Western R. Co. v. Public Service Commission, 329 Mich 432; Chicago, Milwaukee, St. P. & P. R. Co. v. Public Service Commission, 332 Mich 291; Chicago, Milwaukee, St. P. & P. R. Co. v. Public Service Commission, 338 Mich 9), take judicial notice of the existence of the problem presented and the strong feelings of dwellers in a community on the subject of loss of such train service. The effect of the 2 news stories, if read by the persons who were jurors in this case, and, even if not read, of the quoted statements of defendant’s attorney, on the minds and emotions of those jurors, and the possible appeal thereof to prejudice and self-interest on the part of any of them, can well be imagined. It is obvious from counsel’s conduct, after the court had admonished the jury not to read the news story, that such an appeal is exactly what was intended and that it was made with design.

In Layton v. Cregan & Mallory Co., Inc., 269 Mich 574, 583, a negligence action, this Court, in holding that plaintiff’s attorney had made statements in his argument to the jury which appealed to passion and prejudice, resulting in reversible error, said:

“The general principle underlying all these cases is that the parties are entitled to a fair trial on the merits of the case, uninfluenced by appeals to passion or prejudice.”

In Antosik v. Michigan Alkali Co., 166 Mich. 415, in reversing judgment for plaintiff, this Court held that it was improper for counsel in his argument to the jury to appeal to their sympathies on matters not at issue in the case.

In Narciso v. Mauch Chunk Township, 369 Pa. 549 (87 A2d 233, 33 ALR2d 438), argument by defense counsel to the jury that the suit was not in reality against the township but against its taxpayers was held to be a prejudicial appeal to the jurors’ self-interest, passion, and prejudice, requiring reversal of judgment on verdict for defendant. See-report of that case and annotation, 33 ALR2d 438, 442.

Appeals to jurors’ personal situations and attempts, in argument, to apply a hypothetical set of facts, like those involved in the ease, to the jurors personally constitute reversible error. McDonald v. Champion Iron & Steel Co., 140 Mich 401; Hughes v. City of Detroit, 161 Mich 283 (137 Am St Rep 504); Morrison v. Carpenter, 179 Mich 207 (Ann Cas 1915D, 319); Mortensen v. Bradshaw, 188 Mich 436.

Also cited by plaintiff as cases in which reversal in this Court has resulted from improper argument of counsel to the jury are the following: Rauhala v. Maki, 172 Mich 112; Remey v. Detroit United Railway, 141 Mich 116; Geist v. Detroit City Railway, 91 Mich 446; Seabury v. Detroit United Railway, 194 Mich 423; Selby v. Detroit Railway, 122 Mich 311; Ward v. Reed, 134 Mich 392.

Defendant says plaintiff has not saved the above-point for review because he did not ask the court to instruct the jury to disregard the improper argument. Cited for this is Marr v. Saginaw County Agriculture Society, 364 Mich 373, and cases cited therein. In Marr reliance was placed on Curth v. New York Life Ins. Co., 274 Mich 513, in which this Court said that, in order to save the point, it was not enough, for counsel merely to take an exception but fail to ask the trial judge to make a ruling. Here plaintiff objected and the trial court did make a ruling, bolding the argument to be improper. It is true that the plaintiff did not, in his requests to charge, include one on this point. We think that not fatal to his right to have the matter reviewed here.

In McDonald v. Champion Iron & Steel Co., 140 Mich 401, improper argument and an appeal to the jurors to consider what they would take for the death of a son under circumstances similar to those presented in the case was held so prejudicial as to constitute error, considered on review even though not objected to on trial. We think applicable here, from Steudle v. Yellow & Checker Cab & Transfer Co., 287 Mich 1, 11-13, the following:

“Exceptions were noted to this argument by appellant, but the court was not requested to warn the jury or charge them that the same was improper and should be disregarded.

“In the case of Curth v. New York Life Ins. Co., 274 Mich 513, and cases there cited, we held that in order to base error upon a claim of improper argument there should not only be an objection but the court should be requested to charge or caution the jury. Most of the cases concerned with the question seem to involve a single transgression which presumably occurred inadvertently.

“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 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. * * *

“It is our conclusion that the argument as made so inflamed the minds of the jury against the defendant that a charge to disregard it would have been useless; and that, therefore, it was unnecessary for the defendant to request such a charge.”

The statement to the jurors in the Pennsylvania, case of Narciso v. Mauch Chunk Township, supra, above, appealing to their self-interest as taxpayers,, certainly is matched in prejudicial effect, here, by the appeal to the jurors’ self-interest as to what would be the consequences to them “as individuals, as owners of businesses, as farmers, as owners of property” if, as implied, a verdict for plaintiff should result in discontinuance of railroad passenger service in their area. An instruction to ignore the statement could not have erased it from the jurors’ minds. To make plaintiff’s rights dependent upon the results of speculation as to whether it affected their judgment and decision is not compatible with the concept of a fair trial, to which every party is entitled. Plaintiff is entitled to a new trial, free from such influences.

Inasmuch as the case must be tried again, it may be helpful to note that we perceive no merit in plaintiff’s other claims of error.

Reversed and remanded for new trial, with costs to plaintiff.

Carr, C. J., and Kelly, Otis M. Smith, and Adams,, JJ., concurred with Dethmers, J.