Krenik v. Westerman , 201 Minn. 255 ( 1937 )

Defendant's contention is that plaintiff's counsel should not have made statements from which it might be inferred that there were some things about the taking of the statements which were reprehensible. But all of this was provoked by the remarks of defendant's counsel, covering several pages of the record, that the taking of the statements was entirely proper and that it was misconduct for plaintiff's counsel to contend to the contrary. Illustrative remarks of defendant's counsel are:

Mr. Donnelly: "I think I have a right to read this in my argument to the jury, the Swanson case, Swanson v. Swanson,265 Northwestern 39, at page 41.

The Court: "Did you see it?

Mr. Moonan: "I did. I think it's proper subject for argument, but it is not proper for counsel to read a part of the opinions of some court.

The Court: "The fact it is bound in a lawbook binding doesn't make it objectionable.

Mr. Moonan: "Very well. Note an exception.

Mr. Donnelly (reading): " 'Diligence in performance of duty frequently required that a lawyer charged with either the prosecution or defence of a case of this kind procure statements from prospective witnesses as promptly as may be. They are not to be criticized for so doing. They would be subject to criticism for doing otherwise. There is about the memory of some witnesses a kaleidoscopic and manipulable quality against which it is often impossible to take enough precaution. If the work is honestly done, it deserves nothing but commendation. We cannot condone tacitly or otherwise the action of counsel, who, after it appears that the statement of a witness has been taken with fairness, persistently endeavors to make a jury believe that there is yet something reprehensible clinging to it. Such procedure is misconduct.' That's what our supreme court of the state of Minnesota has said. So, please, ladies and gentlemen, do not be misled by any grave suggestions that have been made or may be made implying that the taking of statements of witnesses in cases of this kind is dishonest or wrongdoing. As in that case the difficulty of taking enough precaution has already been clearly shown in this case, I am sorry to say."

The case referred to by counsel is Swanson v. Swanson, reported in 196 Minn. 298, 265 N.W. 39. The part of the argument of plaintiff's counsel which it is now claimed was improper was in answer to the arguments of defendant's counsel that the taking of the statements was proper and not fraudulent.

1. Defendant is not entitled to assign error with respect to the argument of plaintiff's counsel because the entire matter could have been avoided by defendant's making a timely request for an instruction to eliminate from the consideration of the jury the issue of fraud in the taking of the statements. By 2 Mason Minn. St. 1927, § 9298, counsel was entitled to request instructions, have a ruling of the court allowing or disallowing them before the arguments to the jury, and read to the jury the instructions given as part of his argument. Defendant was entitled to the instruction eliminating the question of fraud under the rule of the very case of Swanson v. Swanson, 196 Minn. 298, 265 N.W. 39, from which he read, which instruction the court later gave, after the arguments, upon the authority of that case. But defendant's counsel was not satisfied with the benefits of the statute alone. The statute did not serve his purpose. He took benefits which the statute did not give him. He argued the question of fraud to the jury to get whatever advantage he could by reading from Swanson v. Swanson, which he could not do if he had abided by the statute. Then, when plaintiff's counsel replied to his argument, he requested the court to instruct the jury that there was no issue of fraud in the case and to disregard the remarks of plaintiff's counsel. In other words, he wanted to be in the position of having discussed the matter thoroughly from his point of view and have an instruction from the court ruling out any similar discussion on the part of plaintiff and taking the entire issue from the jury.

It is well stated in 3 Am. Jur. § 246, p. 27, et seq.:

"Obviously, the ends of justice are served by the avoidance of the delay and expense incident to appeals, reversals, and new trials upon grounds of objection which might have been obviated or corrected in the trial court if the question had been raised. * * * Where a party has the option to object or not, as he sees fit, the failure to exercise the option when the opportunity therefor presents itself must, in fairness to the court and to the adverse party, be held either to constitute a waiver of the right to object, or to raise an estoppel against the subsequent exercise thereof."

We applied the rule in McCarvel v. Phenix Ins. Co. 64 Minn. 193,66 N.W. 367, in which we held that failure to request an instruction which would have obviated error precluded a party from assigning the error upon appeal. In principle it is somewhat akin to the doctrine of invited error, which precludes a party from asserting error on appeal which he invited or could have prevented in the court below. An appellate court will not permit a party to place himself in a position where, if the verdict is satisfactory, he can abide by it; but, if it is against him, he may avoid it. 1 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934) § 419; Bennett v. Syndicate Ins. Co.43 Minn. 45, 44 N.W. 794; Crane v. Veley, 149 Minn. 84,182 N.W. 915. The thought is stated in Townsend v. Jemison, 7 How. (U.S.) 706, 721, 12 L. ed. 880: "Nor does it promote the ends of justice to let parties lie by and not take exceptions, and afterwards reverse judgments for omissions, which, if noticed at the time, would have been corrected." But, instead of taking the ruling to which he was entitled by law, defendant's counsel elected, for the time being at least, as he thought, to take the issue to the jury. There was much evidence aside from the fraud in their taking, affecting the weight of the statements. We can only surmise that his reason for arguing the matter first to the jury, instead of to the court, was to get before the jury the language used by us in the Swanson case, quoted above, to applaud and praise the defense in language of this court laid down as an abstract proposition, not intended for defendant or to apply to its particular conduct, but which defendant's counsel cleverly would have had the jury believe was intended for his client and his agents. It is hardly necessary to say that defendant's counsel himself was guilty of misconduct. In Steffenson v. C. M. St. P. Ry. Co.48 Minn. 285, 51 N.W. 610, we held that reading from lawbooks to the jury by counsel is a dangerous practice and should not be indulged in. Plaintiff was entitled to have the jury receive the law directly from the judge presiding in the court below and not from defendant's counsel. Abbott, Civil Jury Trials (5 ed.) § 352, p. 770, note 18.

After the arguments the court granted defendant's requested instruction, which was in the language and form prepared by him and in which the court charged the jury that there was no fraud in the taking of the statements and directed it to disregard the statements and arguments of plaintiff's counsel upon which error is now predicated. The instruction embraced substantially the language which counsel had quoted from Swanson v. Swanson,supra. The court took great pains in other parts of the charge to instruct the jury to lay aside all passion, prejudice, and sympathy and calmly to consider the entire case. And in its last admonition to the jury it again singled out the argument of plaintiff's counsel and again admonished the jury not to be unduly influenced by it.

To reverse is to permit defendant to profit by his own wrong. He should have requested the instruction at the proper time and should not have injected the issue into the case. After having provoked counsel and engaged in such arguments, he should not be permitted, after an adverse verdict, to take advantage of the situation which he himself has created. One should not be permitted to lie in wait, to use the language in Townsend v. Jemison, 7 How. (U.S.) 706, 12 L. ed. 880, nor to ambush his opponent. See Dehen v. Berning, 198 Minn. 522, 528,270 N.W. 602. It offends against all principles of justice and fairness.

2. The remarks of plaintiff's counsel in themselves are not prejudicial. They amounted to no more than an appeal to the jury to do its duty, to do justice. They requested only compensatory damages. Such remarks are not prejudicial. Smith v. G. N. Ry. Co. 133 Minn. 192, 158 N.W. 46, in which counsel requested the jury to award his client "big money." Nor were the remarks on the interest of the insurance company in this defense erroneous. Counsel for defendant concedes that the conduct of the company was introduced as an issue by himself and a subject of legitimate comment but says that plaintiff's counsel went too far. The mere fact that the remarks related to an insurance company does not preclude counsel from making any proper discussion of the conduct involved. State v. Ettenberg,145 Minn. 39, 176 N.W. 171. Counsel may call things by their true name when the record supports it. Kassmir v. Prudential Ins. Co. 191 Minn. 340, 254 N.W. 446. If the remarks were as prejudicial as counsel now claims, it seems that he would have moved the court for a mistrial. Instead, he asked the court for an instruction which he then thought was adequate to deal with the situation. That aside, the court below, who was in a better position than we are to determine the effect of the remarks, deemed the instructions adequate to overcome the prejudice, if any, of the remarks. We should remember though that juries are possessed of much common sense. As stated in 4 C.J. 958:

"The reason for this rule has been very clearly stated in a recent decision as follows: 'It is the presumption of law that jurors are intelligent, honest, fearless and just. Courts are not justified in assuming that the mind of the jury is of such plastic and unreliable material as to at any unjustified word of debate neglect the instructructoins abandon the evidence and disregard their oaths.' " Devine v. Chicago City Ry. Co. 167 Ill. App. 361, 364. See Smith v. G. N. Ry. Co. 133 Minn. 192, 158 N.W. 46.

3. Defendant cannot complain. He received the instructions and the relief which he requested. He was not entitled to anything more. Curran v. C. G. W. R. Co. 134 Minn. 392,159 N.W. 955; see Bank of Dakota County v. Garvin, 167 Minn. 101,208 N.W. 642. If counsel did not get more it was because he did not ask for more. Adequate correction was made by the instructions. In Tri-State Transfer Co. v. Nowotny, 198 Minn. 537,270 N.W. 684, we held that a somewhat similar argument by defendant's counsel in this case, attacking a statement, was cured by an instruction that the taking of the statement was not fraudulent and that it was proper.

4. The duty to prevent improper influences from trials is one resting upon "both lawyers and courts." Prescott v. Swanson,197 Minn. 325, 337, 267 N.W. 251, 257. The duty is upon defendant's as well as plaintiff's counsel. If counsel had discharged the duty in this case he would not be here asserting error. Precepts are useless unless they are observed. We will not get coöperation between court and counsel by permitting counsel to pursue the course which was adopted in this case, and lay up error to be asserted later by them. This is to make a lawsuit a game of chance.

In my judgment, the court below made the right disposition of this case. There should be an affirmance.

MR. CHIEF JUSTICE GALLAGHER took no part in the consideration or decision of this case.