Gagush v. Hoeft ( 1919 )

Ostrander, J.

a judgment for $2,000 for plaintiff was reversed and a new trial ordered. Gagush v. Hoeft, 198 Mich. 263. The testimony, which it was held required the giving of a certain refused instruction, does not appear at all in the record now before us, about which appellant does not complain, did not seek to develop on cross-examination or otherwise, and about which counsel for appellee says in the brief:

“While the general facts and theories as reported and developed in the former trial of the circuit court were again reiterated, certain material evidence which was introduced at the trial of the cause the first time were entirely omitted, changed, amended on this last trial.”

The case for the plaintiff is, however, so developed in the statement of facts in the 198th Michigan that it is not necessary to repeat that statement here.

Upon the second trial, plaintiff had judgment for $1,850. Appellant’s assignments of error, argued in his brief, are based upon exceptions to rulings made during the course of the trial and upon exceptions to alleged prejudicial remarks of counsel for appellee. These various exceptions brought to the attention of the court upon a motion for a new trial were overruled, and of 37 assigned errors only the 9th, 26th to 30th inclusive, and the 37th are referred to in the brief. These assignments will be referred to in their order.

A witness was giving testimony, an interpreter being employed. Difficulty appears to have been experienced in eliciting whatever the woman knew. It is not apparent that this difficulty arose from the fault of any one. A question was propounded. The court said:

“Now, interpreter, have her understand that, what Mr. McHugh (counsel for defendant) wants is to have her tell what Mrs. Gagush said as to what took place in the cemetery, see if you can have her understand that.

“A. First, she did not tell until afterwards.

“Q. Then what did she tell you afterwards?

"Mr. McIntyre (attorney for plaintiff) : I will stipulate, your honor, on this record that this witness will say what he wants her to say.”

Counsel for defendant objected to this as a grossly prejudicial remark and recorded an exception, and the court said:

“The exception may be noted. The jury should not pay any attention to that. We are all having trouble getting these questions and answers, and it is not the fault of anybody.”

We are not at all certain that the counsel who made the. remark complained about intended the meaning to be given to it which counsel for appellant gives it, which is a meaning that the words, standing alone, import. Our uncertainty as to the intended and accepted meaning of the remark arises partly from the manner in which the objection was treated by the trial court. If the attorney who made the remark intended that the jury should understand him to assert that the witness would, without regard to truth, give such testimony as the defendant wished her to give, he deserved a reprimand from the court which would sharply correct his conduct. Whatever his intended meaning, the remark should not have been made. It does not follow that defendant was prejudiced by it. Jurors do not generally overlook the lack of due decorum. on the part of counsel in the trial of causes, and are quite likely to resent improper and impertinent remarks and comments. The testimony of this witness, as well as her manner of giving it, was for their consideration. We cannot say that reversible error was committed.

In his argument to the jury, addressed to the question of damages, the attorney for appellee said, “She is entitled to the same share in his property — ,” when he was interrupted by the objection that the measure of damages is not determined “by any share in his property.” The court said, “I will attempt to define the measure of damages to the jury when I get to it.” The attorney for appellee at once disclaimed the right or desire to usurp the functions of the court, but continued, by saying:

“I am simply telling you, if I be wrong in my statement of what the measure of damages in this case is, then I will stand corrected, but my understanding is, gentlemen, if this woman promised to marry a man that was worth $5,000, and as his wife she would become entitled to an interest in that $5,000, if he were to die the next day after the marriage ceremony were performed, she would be entitled to dower rights in his property.”

No complaint is made of the charge of the court thereafter given. A party is more often harmed than aided when his counsel asserts a legal proposition which the court denies.

Continuing his argument, counsel for appellee became eloquent and was several times interrupted and exceptions were taken to his remarks. Without setting out the argument, we express the opinion that the limits of proper argument were not exceeded. Counsel did express the opinion that his client was a virtuous woman. Her reputation for chastity was involved by the testimony. His expressed opinion seems to have been based upon the testimony. Summed up, his expressions in his argument amounted to no more than this: “I am impressed, and I think the jury ought to be, that upon this record she is shown to be a virtuous woman.”

It was error for the court to refuse to counsel for the appellant the right to comment in his argument upon certain alleged contradictions in the testimony given upon the former and upon this trial. Using the testimony given on the former trial, counsel had properly interrogated the witnesses for appellee upon cross-examination, and had secured certain admissions with respect thereto. In argument, he sought to return to the matter and to call the attention of the jury to the alleged discrepancies and contradictions of testimony. For this purpose he used, as he had used in interrogating the witness, the record of the testimony given on the first trial. This he was refused permission to do. No one claimed, or now claims, that he made improper use of the testimony or sought to call attention to matter not used in cross-examining the witnesses. What he sought to do was, in substance and effect, this: To say to the jury that the witness admitted having testified on the former trial as follows — reading from the minutes of the testimony given on the former trial matter to which the attention of the witness had been directed — and upon this trial she testified differently. In short, he was directing attention to testimony given at the instant trial. But the court was of opinion that he should either have produced a transcript of the testimony given upon the last trial or have had the reporter read whatever was desired from his notes. The practice pursued by counsel is not an uncommon one, and not improper, it being always the duty of the trial court to see that an unfair argument is not indulged in. Whether for this error, this limiting of the privilege of argument, the judgment should be reversed depends upon whether we can say that prejudice did not result. To this end we have examined the testimony, and especially the alleged- contradictory statements of witnesses about which counsel sought to address the jury, reaching the conclusion that it is wholly improbable that the limitation of the argument affected in any way the result— the conclusion of the jury. Wholly outside of the alleged contradictory statements of the witness, there remains the main, the vital and material facts upon which plaintiff’s case depended. They were, that the parties mutually promised to marry each other, at a time to be fixed and which was fixed, reasonably, by defendant, that the defendant refused to marry plaintiff, that her damages were aggravated by her seduction by defendant under promise of marriage.

We do not find reversible error, and therefore affirm the judgment, with costs to appellee. ,

Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.