Elliott v. Detroit United Railway , 226 Mich. 92 ( 1924 )

I do not concur in the opinion of Mr. Justice STEERE that this case should be reversed because of improper argument of counsel. Many of the objections to the argument cannot be considered because no rulings were requested or obtained. Crane v. Ross,168 Mich. 623; Good Roads Construction Co. v. Railway Co.,173 Mich. 1; B. Marx Son v. King, 177 Mich. 662. The remaining objections, when analyzed, fall far short of being reversible error.

Omitting that part of the argument to which objection was taken, but no rulings were made, we have remaining three objections which may properly be considered under the rule. These are the following:

(1) "Mr. Barnard: Because that is exactly what it means; if he says he cannot stop for a thousand feet, can only see two hundred feet at the crossing, and he would drive sixty miles an hour, if the company said so, then if they said the word he would take a life if it happened to be there.

"Mr. Harward: I object to that.

"Mr. Barnard: Then, you say, has a corporation a heart or soul?

"Mr. Harward: I object to that.

"Mr. Barnard: No, it has neither.

"The Court: Do you want a ruling?

"Mr. Harward: I want whatever you should do under such an objection.

"The Court: I rule that in making his remarks he must confine himself to the testimony.

(2) "Final Argument by Mr. Barnard: Gentlemen of the jury: Mr. Harward did exactly what I thought he would do; he talked about everything but the case; he told you what Bacon had to say, that Bacon had no regard for a jury, he told you Bacon said this and Longfellow said that; but this is an age of speed, this is the time the public demands speed; they demand human flies on buildings and aeroplanes in the air, and all kinds of nonsense, and because the D. U. R. gives them that speed, that corporation is loaded up with coppers in its treasury.

"Mr. Harward: I object to that. I want a ruling on that.

"The Court: I do not see anything in that.

(3) "Mr. Barnard: This lady said on the stand that Jones said the whistle was blown. Just read, Mr. Stenographer, whether it said Nelson or not.

"Mr. Harward: I object to it.

(Here the stenographer reads the testimony about the Nelson switch, being the testimony on that point of Jessie Elliott.)

"Mr. Barnard: He says that contradicts Miss Elliott's testimony, and he says that all the witnesses when coming in here, that I was going to eat them alive; I know the sympatheticalness of the D. U. R. and these lawyers who get down to a jury and say, this is a nice business proposition, and that kind of stuff, that confidential talk.

"Mr. Harward: I object to all this, I would like a ruling.

"The Court: The ruling is that he is proceeding properly."

1. This objection is not based upon any misstatement of fact. There is very little about the statement that would have a tendency to inflame or arouse the feelings of the jury. It was simply a reiteration of an old saw that everybody has heard a thousand times, and, as a matter of fact, it is true that corporations have neither hearts nor souls, and the jury knew that as well before as they did after counsel advised them of the fact.

2. To this objection the court said: "I don't see anything in that." A most fitting and appropriate ruling. Most of the argument was in answer to extraneous matters that counsel for the company had talked about, and the rest of it was of little consequence to either side.

3. This, in part, also appears to be in answer to certain argument made by defendant's counsel, and a comment upon the way defendant's lawyers addressed the jury. While the argument was not very helpful to the jury, it is not perceptible how it could have done any harm. In nearly all lawsuits where anything of importance is at stake, and counsel are urging their respective interests with zeal, more or less extraneous and immaterial matter creeps in. Counsel exchange witticisms, indulge in humor and say biting things to each other, and criticize the conduct of each other. The court, jurors and bystanders expect counsel will indulge these verbal weapons, and they make due allowance for them when considering the merits of the case.

In commenting upon the argument of counsel it is said in Ruling Case Law:

"Counsel should not be too closely confined in his argument to the jury. The most liberal freedom of speech should be allowed. He should be permitted to discuss the facts proved or admitted in the pleadings, arraign the conduct of the parties, and attack the credibility of witnesses, and he may indulge in oratorical conceit or flourish. He may repeat the evidence verbatim for the purpose of commenting on it in the connection in which it was introduced at the trial." 2 R. C. L. p. 411.

"Various exceptions were taken to the remarks of Mr. Boudeman, one of the attorneys for the plaintiffs, in summing up the case to the jury. While some of his deductions from the testimony, and claims made by him, might not coincide with our ideas, we find no such error in any of his remarks as would warrant a reversal of the judgment. An attorney is entitled to some license in his argument and the testimony to him may bear quite different inferences and conclusions than might be deduced by a disinterested and unbiased judge. But if we were to reverse cases because the attorneys of the parties claimed more from the testimony for their clients than we could discern in the evidence, or argued that facts were established when we thought they were not, we should not only invade the province of the jury, but vacate most, if not all, of the judgments that come for review before us." Dikeman v. Arnold, 83 Mich. 218.

In the personal injury case of Battishill v. Humphrey,64 Mich. 514, complaint was made of improper argument of plaintiff's counsel, and Mr. Justice CHAMPLIN summed the matter up in this way:

"Extravagant expressions are apt to be used in the heat of argument. Invective is sometimes resorted to, persuasions made, and forensic skill employed, — all with the design to influence the jury in behalf of a client. But all these arts and appliances are permissible so long as confined within legitimate bounds of the discussion of the facts before the jury; and if courts are to take it upon themselves to set aside verdicts because some irrelevant remarks are made use of by counsel in their arguments, they will find constant employment, and few indeed will be the verdicts which will be sustained."

Mr. Justice HOOKER observed in Lathrop v. Sinclair, 110 Mich. 329, where a similar claim was made, that:

"Error is also assigned upon the arguments of counsel, but we discover nothing therein that calls for a reversal of the case. We have repeatedly said that the injury must be apparent, or the abuse very great, before we would interfere with the exercise of the discretion of the circuit judge in relation to the language of counsel."

There is nothing in either one of the three objections that should call for a reversal of this case. There is no claim that counsel made any misstatement of fact, or that he unduly vilified any witnesses, or made claims not supported by the testimony, and there is no language in and of itself that could be tortured into any error unless it could be said that his statement that a corporation has neither heart nor soul was responsible for inflaming the jury and working them up to a pitch of excitement which induced them to give a larger verdict than they otherwise would have done. Just how this old hackneyed saying that has been worn threadbare in courts and in the press could excite twelve men so that they would lose sight of the merits of the case is not easily understood. The jury quite likely gave more of a verdict than the evidence sustains, but that is a thing which juries are prone to do in this class of cases. It would, in my judgment, be setting a very bad precedent to say that a case which employed the attention of twenty men, beside the witnesses, for nearly a week, should be reversed for anything that can be found in these three objections, and especially is this so since there is no likelihood that any different results will be obtained in a rehearing.

I am of the impression, however, that the verdict is larger than the testimony will support:

"In considering this question the power of the appellate court to act and to vacate judgments, or to require an abatement from the amount recovered as a condition of affirmance must not be doubted. That such power rests in this court is beyond question. This power is absolutely essential to the proper administration of justice." Fishleigh v. Railway,205 Mich. 161.

In the exercise of this power the court should in this case determine the limit to which a verdict could go and still be within the limits of the testimony. This would be fair to the defendant and we are practically asked to do that thing by the plaintiff if we shall find the judgment too large. The attorney for the plaintiff says in his brief, in discussing this question:

"We respectfully submit should the court feel called upon to reduce this verdict, a very substantial amount should be left with which to fully compensate these parents for any special and pecuniary loss they would suffer by reason of the taking off of their son."

After a careful consideration of the testimony we are satisfied that had the jury returned a verdict for $4,000 we should not have disturbed it. It would be possible and reasonable for a jury, under the testimony, to have found a verdict of this amount after taking into consideration the present scale of wages, the living costs, and the increase in wages he might have received as he advanced to his majority.

It is my judgment that this case should be reversed on the ground of an excessive verdict, unless plaintiff, within twenty days from the filing of this opinion, files in the trial court a remission of the judgment down to $4,000. If such remission be filed then the judgment should stand affirmed for that amount, otherwise it should be reversed, with costs to the defendant.