Johnson v. Michigan Mutual Savings Ass'n , 242 Mich. 558 ( 1928 )

In my opinion this case should be reversed because of the prejudicial argument of plaintiff's counsel, upon which error has been assigned. I quote therefrom:

"Now you aren't hurting me; it is that widow back there and the children that you are hurting; not me. This isn't my suit and if they paid — after I am paid, if I should be, still I should feel that I am in better position than the prosecuting attorney of this county who is here defending this defendant who has come over from Ohio and brought a corps of stock swindling selling agents —"

On objection thereto the court said:

"I think you ought to discuss the testimony and make the applications from that and confine yourself to the testimony." * * *

"The testimony shows they have been authorized to sell fifteen million dollars' worth of memberships to the people of the State of Michigan. They are authorized to mulct the people of the State of Michigan out of fifteen million dollars for the credit of —"

On objection and request for a mistrial the court said:

"I think you ought not to use that word mulct. * * * There have been several things in this case, but I am still going to try to save the case."

He then instructed the jury to disregard "the statement of counsel absolutely."

"Now, it would seem that this association had agents in Detroit to sell all the memberships and stock they had, without importing these high-powered salesmen from the State of Ohio. I have heard of the bandits being imported from one city to another, but I never heard of them going from an entire State and importing a corps of swindling salesmen — we have one in this case."

On renewed objection and request for a mistrial, the court said: "Confine yourself to the testimony."

Over objection, counsel continued:

"Our friends upon the other side can say anything they want to. We are at a disadvantage. We aren't able to express our ideas and to express our contempt of the defendants because they pop up and call it non-suit. * * *

"Now, there is a string of these stock salesmen and you probably know — I don't know if you know how it works, but I have seen more or less of it. In fact, I was skinned out of $1,000 once myself and possibly they put me on a sucker list, but I never have been since. * * *

"Why, they would take candy from a baby. They did take some in our county, $25. * * *

"You don't blame me for being here, do you? You can hardly blame the prosecutor for being here. If I could get $4 out of every $5, the Lord only knows what I would do, but so help me God, I don't sell stock, even for $4 out of every $5. * * *

"Would you have gone into this if you had known you had to pay $50 a month for 11 years? Nobody said so and nobody understood so. It is just as this lady said and Mr. McCann said; it is absolutely worthless. You can't get your money back. It isn't worth anything more than a whip pocket on a Ford; not a bit. It is no good to any one. Any other companies charge nothing; all the way from nothing to 50 cents."

On objection that there was no testimony bearing on the statement made, and demand for a mistrial, the court said: "Strike it out."

The statements complained of, which we have quoted only in part, were not referred to in the general charge. It cannot well be claimed that they were in reply to anything said by opposing counsel.

During the course of the trial, on objection being made to the introduction of prejudicial testimony, and on motion to declare a mistrial therefor, the court said:

"Yes, it is prejudicial. There is no doubt about it. I presume I really ought to. If I didn't know this jury as well as I do, I would declare the cause a mistrial, but I think that I will not do so. I want the jury to disregard the statement of counsel absolutely in the matter and I think that you will be able to do so from my experience with you for the last two or three months."

Later in the trial, when plaintiff's attorney was testifying as a witness for her, he had stated that in November or December, 1924, he was at the office of the defendant. Quoting again:

"Q. When was the last time you went down there?

"A. I was down there when I sued you for —

"Mr. Newman: Just a minute.

"A. (Continued) Grossman's.

"Mr. Newman: All right; I will ask to have it declared a mistrial on this statement.

"The Court: Strike it out, gentlemen of the jury. I don't know what I really ought to do with this case, ladies and gentlemen of the jury, I think you can just disregard that retort of Mr. Waters."

This court has repeatedly reversed cases because of the improper argument of counsel. In Hillman v. Railway, 137 Mich. 184, reversal was had for this reason alone. It was there said:

"One cannot read the record without being impressed with the idea that the trial judge got tired of trying to keep counsel within the rules, and that counsel was not willing to acquiesce in the admonitions and suggestions of the court. The mischief done by the improper argument of counsel was not cured by the judge."

In Atherton v. Defreeze, 129 Mich. 364, this court said:

"As long as attorneys will resort to such methods, unjustifiable either in law or ethics, courts have no alternative but to set the verdicts aside."

Later cases in which prejudicial argument was held to be ground for reversal are Reed v. Louden, 153 Mich. 521; Hughes v. City of Detroit, 161 Mich. 283 (137 Am. St. Rep. 504);Morrison v. Carpenter, 179 Mich. 207 (Ann. Cas. 1915D, 319);Stowe v. Mather, 234 Mich. 385. As was said by Mr. Justice STONE in Morrison v. Carpenter, supra:

"If counsel persist in making such improper arguments, they must take the consequences resulting therefrom."

It is unfortunate that "the consequences" must here be suffered by the client instead of by the attorney.

The judgment is reversed, with costs to appellant, and a new trial ordered.

FEAD, C.J., and NORTH, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred with SHARPE, J.