Benmark v. Steffen

• Decision Date: 18 March 1968
• Docket Number: No. 3,Docket No. 2852,3
• Parties: Dora BENMARK, Plaintiff-Appellee, v. Edwin F. STEFFEN, Executor of the Estate of Burr H. Thompson, Deceased, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 468

157 N.W.2d 468

9 Mich.App. 416

Dora BENMARK, Plaintiff-Appellee, v. Edwin F. STEFFEN, Executor of the Estate of Burr H Thompson, Deceased, Defendant-Appellant.

Docket No. 2852.

Court of Appeals of Michigan, Division No. 3.

March 18, 1968.

Released for Publication April 5, 1968.

William P. Cooney, Ward, Plunkett, Cooney, Rutt & Peacock, Detroit, for appellant.

Duane S. vanBenschoten, vanBenschoten & vanBenschoten, Saginaw, for appellee.

Before FITZGERALD, P.J., and BURNS and HOLBROOK, JJ.

FITZGERALD, Presiding Judge.

This is an action for personal injuries caused by an automobile accident in Saginaw county. The first trial resulted in a jury verdict for plaintiff in the amount of $50,000. On appeal, the judgment was reversed and the case was remanded for retrial. Benmark v. Steffen (1965), 374 Mich. 155, 132 N.W.2d 48. Reversal was ordered 'on account of prejudicial misconduct of both trial counsel before the jury, on account of error of the trial judge in failing to discipline the trial properly, and on account of error of the trial judge in refusing to grant defendant's motion for mistrial.'

On retrial, defendant was represented by other counsel. Plaintiff was represented by the same counsel and (we refrain from commenting on the wisdom of the procedure) the same circuit judge presided. Defendant admitted liability prior to retrial and the case was tried on the issue of damages alone. The jury returned a verdict for plaintiff in the amount of $7,500. Plaintiff moved for a new trial or additur based on alleged misconduct of defense counsel, both in trial of the case and in closing argument, and also claimed that the verdict was inadequate.

No allegation of misconduct was raised during the retrial. One objection was made to a portion of the closing argument, but was overruled by the trial court. No jury instruction regarding improper conduct or argument was requested or given. Without benefit of the transcript, the trial court granted the motion for new trial. The court held that:

'Defense counsel's baseless, repetitious comments and objections, not only to the presentation of plaintiff's case, but especially to the rulings of the court throughout the entire trial seemed calculated to create in the minds of the jurors the impression that it was not possible for defendant to have a fair trial in this jurisdiction and so overshadowed and obscured the actual issues of the case that another trial in a more dispassionate, judicial atmosphere appears necessary in the interest of simple justice;'

and that:

'Most of the objectionable comments and tactics of defendant's counsel were definitely designed to and undoubtedly did influence the jury improperly and unfairly during the course of the trial.'

It is argued by appellant that the court erred in holding that defense counsel's conduct was prejudicial, and abused its discretion in granting a new trial. Counsel admits that the case was tried with diligence and staunch advocacy, but claims that disagreements with the lower court's rulings in the presence of the jury were courteous, if insistent, and were not in any manner prejudicial. The court's findings to the contrary, it is pointed out, are not supported by specific quotations from the transcript.

The issue before us is clear: should the new trial have been granted?

Until rather recently, the granting of a motion for new trial was held not appealable because it did not finally dispose of the case in the trial court. See, by way of example, Wheeler v. Equitable Life Assurance Society of United States (1940), 294 Mich. 520, 525, 293 N.W. 735, 737:

'It is the rule of this Court that an unconditional order granting a new trial may not be reviewed on writ of error. Decker v. Fair (1923), 222 Mich. 507, 193 N.W. 288; Mifflinburg Bank v. Bickhart (1923), 224 Mich. 98, 194 N.W. 413; Terzian v. Gordon (1924), 229 Mich. 296, 200 N.W. 943. The same rule applies to general appeals under the present practice and we cannot review the court's unconditional order granting the new trial.'

What few cases there were on this subject were brought by way of mandamus, a generally unsuccessful method for attacking a decision involving a large measure of discretion in the trial court.

The practice has now been changed, and orders granting new trials are reviewable upon leave granted. Moreover, 'recent decisions indicate a disposition of the (Supreme) Court rather freely to grant leave to appeal for direct review of an order granting a new trial.' 3 Honigman & Hawkins, Michigan Court Rules Annotated, pp. 123--124. As a consequence there is a wealth of recent cases in which guidelines for review of an order granting a new trial are set forth.

All recent cases reiterate that the granting or denial of a motion for new trial rests largely within the discretion of the trial court, which, if not abused, cannot be interfered with on appeal. Some cases hold, further, that:

'Even greater latitude is allowed the trial court in granting than in refusing new trials, and the appellate court will interfere more reluctantly where the new trial is granted than where it is denied, since in such cases the rights of the parties are not finally settled as they are where the new trial is refused.'

Patzke v. Chesapeake & O. Railway Co. (1962), 368 Mich. 190, 195, 118 N.W.2d 286, 288, quoting from Hoskin-Morainville Paper Co. v. Bates Valve Bag Corp. (1934), 268 Mich. 443, 450, 256 N.W. 477. A statement to like effect may be found in the dissent to Sloan v. Kramer-Orloff Co. (1963), 371 Mich. 403 at 406, 124 N.W.2d 255.

How much greater latitude should be allowed is open to question. Whereas granting a new trial does not finally determine the controversy between the parties, it does subject both sides to the additional time and expense of re-litigation. In addition, it has the effect of setting aside a jury verdict in favor of one side, a step that should not be taken without sound reasons. See Kalamazoo County Road Commissioners v. Bera (1964), 373 Mich. 310, 129 N.W.2d 427, wherein an order granting a motion for new trial was reversed on the ground that it invaded the province of the jury without sufficient cause. See also, Bridwell v. Segel (1960), 362 Mich. 102, 106 N.W.2d 386. In addition, Hoskin-Morainville Paper Co. v. Bates, supra, which first adopted the 'greater latitude' proposition, reversed the trial court's grant of a new trial notwithstanding the greater latitude it afforded the lower court's decision.

What constitutes an abuse of discretion in granting a motion for new trial is difficult to pin down. The standard for judging judicial discretion in this area seems to vary to some degree, depending upon the result reached. In reversing an order granting a new trial, the majority in Herman v. Ploszczanski (1963), 369 Mich. 252, said at 257, 119 N.W.2d 541, said at 543:

'It has been repeatedly indicated by this Court that the action of a trial judge in granting a new trial will not be set aside unless there is an 'abuse of discretion.' However, such an order for new trial must be based on the facts involved in a particular situation and may not be predicated on conjecture or mere possibilities. As pointed out in Brookdale Cemetery Association v. Lewis (1955), 342 Mich. 14, 18, 69 N.W.2d 176, the term 'discretion' means a 'sound judicial discretion."

In affirming an order granting new trial, the majority in Sloan v. Kramer-Orloff Co. (1963), 371 Mich. 403, 418, 124 N.W.2d 255, relied on Spalding v. Spalding (1959), 355 Mich. 382, 384, 94 N.W.2d 810, 812, for the following definition:

'In order to have an 'abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but definance thereof, not the exercise of reason but rather of passion or bias.'

The question of the scope of review of orders granting motions for new trials is noted in 3 Honigman & Hawkins, supra, at p. 124, as follows:

'There is general agreement, in theory, that the question is whether the trial judge abused his discretion, and there is some recognition that 'greater latitude is allowed the trial court in granting than in refusing new trials.' But there is considerable disagreement as to the latitude left to the trial judge and to the reviewing court under the abuse of discretion formula.'

It is suggested that the most logical way to test the trial court's decision is to inquire, first, whether the reasons assigned by the court for granting a new trial are legally-recognized ones. Justice Souris, speaking for 4 members of an equally divided court, advocated this method in Alder v. Flint City Coach Lines, Inc. (1961), 364 Mich. 29, 31, 110 N.W.2d 606, and listed 4 such legally-recognized grounds for granting a new trial. See, also, GCR 1963, 527.1. The second part of the test is whether the reasons assigned by the trial court are supported by any reasonable interpretation of the record. This is based on the language in Herman v. Ploszczanski, supra, to the effect that an order for a new trial 'must be based on the facts involved in a particular situation and may not be predicated on conjecture or mere possibilities.' (369 Mich. at 257, 119 N.W.2d at 543.)

The trial court granted the motion for new trial because of 'objectionable comments (which) were definitely designed to and undoubtedly did influence the jury improperly and unfairly during the trial.' This comes within the fourth ground for granting a new trial listed by Justice Souris: that the verdict was 'secured by improper methods, prejudice, or sympathy.' (364 Mich. at 31, 110 N.W.2d at 607.) It also comes within the grounds specified in GCR 1963, 527.1(1) and (2) and 528.3(3): fraud, misrepresentation, irregularity or other misconduct of a prevailing or adverse party. The ground given for granting a new trial is thus a legally-recognized...