Connolly v. Nicollet Hotel, 37827

• Citation: 258 Minn. 405,104 N.W.2d 721
• Decision Date: 15 July 1960
• Docket Number: No. 37827,37827
• Parties: Marcella A. CONNOLLY, Respondent, v. NICOLLET HOTEL et al., Appellants.
• Court: Supreme Court of Minnesota (US)

Page 721

104 N.W.2d 721

258 Minn. 405

Marcella A. CONNOLLY, Respondent, v. NICOLLET HOTEL et al., Appellants.

No. 37827.

Supreme Court of Minnesota.

July 15, 1960.

Syllabus by the Court

1. Since the matter of granting a new trial for improper remarks or argument of counsel is governed by no fixed rules but rests almost wholly in the discretion of the trial court, the action of the trial judge will be reversed only where a clear abuse of discretion has been established.

2. Where evidence which would properly be part of a case is within the control of the party to whom it would naturally be favorable and, without satisfactory explanation, he fails to produce it, the jury may draw an inference that it would be unfavorable to him. There was no positive statement by plaintiff's counsel here that the jury might draw such an inference and he did not advise the jury that it might draw an inference that would be unfavorable to the defendants because of their failure to produce any evidence or any witnesses. It was not error for the trial court under our decisions to refuse the cautionary or corrective instructions to the jury requested by defendants. The trial court is not generally required to instruct the jury as to what inferences may be drawn from a set of facts. It was not required to intervene here any more than in any other issue of fact. It was discretionary with the trial court, but he was not bound to do so.

Meagher, Geer, Markham & Anderson, O. C. Adamson, II, and William T. Egan, Minneapolis, for appellants.

Charles R. Murnane, Murnane & Murnane, St. Paul, for respondent.

NELSON, Justice.

Action by Marcella A. Connolly against The Nicollet Hotel and others for personal injuries resulting from being struck by falling debris while walking on the Nicollet Avenue public sidewalk in Minneapolis adjacent to the hotel. The action was tried in September 1956 and resulted in a jury award for damages in favor of plaintiff. Defendants subsequently moved for judgment notwithstanding the verdict or for a new trial. The trial court ordered judgment for defendants notwithstanding the verdict but denied their motion for a new trial. Plaintiff appealed from that part of the order granting judgment notwithstanding the verdict. It was reversed in this court. Connolly v. Nicollet Hotel, 254 Minn. 373, 95 N.W.2d 657. Defendants presently appeal from that part of the order which denied their motion for a new trial.

Rule 50.02(2) of Rules of Civil Procedure provides:

'A motion for judgment notwithstanding the verdict may include in the alternative a motion for a new trial. When such alternative motion is made and the court grants the motion for judgment notwithstanding the verdict, the court shall at the same time grant or deny the motion for a new trial, But in such case the order on the motion for a new trial shall become effective only if and when the order granting the motion for judgment notwithstanding the verdict is reversed, vacated, or set aside.' (Italics supplied.)

After this court's reversal of the order granting judgment notwithstanding the verdict, the order denying the motion for a new trial became immediately effective. Defendants on April 3, 1959, one day after judgment was entered in this court in the former appeal, appealed from that part of the order denying a new trial pursuant to M.S.A. § 605.08. See, Note, Time to Appeal in Minnesota, 35 Minn.L.Rev. 640, 648; McGinley v. Chicago, M. & St. P. Ry. Co., 152 Minn. 48, 187 N.W. 829; Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; 36 Minn.L.Rev. 672, 688.

1. The sole issue on this appeal is whether the alleged misconduct of counsel for plaintiff in the closing argument interfered with the administration of justice to the substantial prejudice of defendants. Since the matter of granting a new trial for improper remarks or argument of counsel is governed by no fixed rules but rests almost wholly in the discretion of the trial court, the action of the trial court in this regard will be reversed on appeal only for a clear abuse of discretion. ¹

The trial court denied defendants' motion for a new trial and in a memorandum attached thereto said:

'The court has denied the motion for a new trial. The Only prejudicial error would be the receiving of the testimony of rumors by employees. If this testimony was not in the case, the meat of the nut would be eliminated, only leaving the shell. If the appellate court is of the opinion that the inferences were strong enough that this article was thrown from a hotel window, that the hotel did have notice because of these rumors, and that the hotel did not exercise ordinary care, Then the verdict should stand.' (Italics supplied.)

Defendants rely upon Ellerman v. Skelly Oil Co., 227 Minn. 65, 34 N.W.2d 251, 5 A.L.R.2d 886, where this court held, upon the particular facts of that case, that defendant was not subject to unfavorable inference for failure to call employee involved in injury sued for, where employee had been discharged 4 years before trial, This was made known during the course of the trial, and such witness was accessible to either party. Mr. Chief Justice Loring stated (227 Minn. 70, 34 N.W.2d 254):

'The law is well settled that where an employe who could give important testimony relative to issues in litigation is not present And his absence is unaccounted for by his employer, who is a party to the action, the presumption arises that the testimony of such employe would be unfavorable to his employer.' (Italics supplied.)

The witness in that case was not present at the trial. In the course of the closing argument to the jury, plaintiff's counsel said (227 Minn. 68, 34 N.W.2d 253):

'* * * you are deprived of the testimony of one very important witness and that is the testimony of this truck driver. He isn't here, and the only explanation that is made here is that he is discharged from the Skelly Oil Company some four months afterwards.'

This was objected to but the objection was overruled by the court. Counsel for plaintiff then continued his argument as follows (227 Minn. 69, 34 N.W.2d 253):

'* * * So in your discretion you may infer that if Horbal was called in this case he would testify to what he told Ellerman, that he spilt this stuff and if he told Ellerman he spilled two or three gallons of this stuff, who knows how much he did spill of it. * * * Nobody is more disappointed in his failure to be here than I am.'

Defendant's counsel again objected but the court overruled the objection. There is no difficulty in coming to the conclusion that plaintiff's counsel in the Ellerman case told the jury that they might in their discretion infer that the witness, if present, would testify adversely to defendant.

A reading of the portions of the closing argument of plaintiff's counsel to which defendants object in the instant case furnishes little if any persuasion that the above rule was violated. The same objection was presented and argued in defendants' reply brief on appeal in Connolly v. Nicollet Hotel, 254 Minn. 373, 95 N.W.2d 657. The parts of the closing argument of which defendants complain are included in the following excerpts therefrom:

'* * * I am not talking about a Jaycee--I am not talking about another employee of the hotel; I am not talking about somebody on the mezzanine or in the lobby; I am talking about the lady who lost her eye in the public street, and did anybody say that they did one thing to protect her? She is the client I represent. When Mr. Woolsey was on the stand I said: 'What did you do when you learned about these things?' 'Nothing,' he said. 'What did you do about protecting the public on the sidewalks?' 'Nothing,' and that's the situation that this lady finds herself in when she is walking down there along the sidewalk with another lady friend minding her own affairs, and in the next moment she is blind in one eye. What did they do to protect her? Not one thing, and that's by their own statement of the facts, and if anything was done in the way of protecting anybody on that sidewalk, you haven't heard it from their lips; you haven't heard it from any of the 400 employees that they have there; you haven't heard it from the doorman. What would he have said had he been called as a witness in this case? He is their employee. What would these house detectives have told you? Would they even have confirmed that which Mr. Woolsey said about taking one look to see who threw something out of the window? What would the four firemen have said? I say, members of the jury, you have a right to say to yourself if those people would have been helpful to the cause of this hotel it would be reasonable to assume they would have been brought here as witnesses to tell you what they knew; on the other hand, if they knew something that would be harmful to the hotel, that's quite a decent explanation for them failing to be decent in the sense of their own personal interests, but it's not decent in the sense of my client's interest. She is entitled to know the full story.

'I am rather amused at the defendant, who would not bring any witness to Court, not one of these people that they said were guarding that hotel. Incidentally, there were four of them that were firemen, there for firefighting purposes and watching for fire. That's the only reason they were there. The other two, as I understood the testimony, they were there to watch the displays of the Jaycees. But, who was to take care of the public? And then they come along and say, 'We did everything we could.' They didn't do anything. That's why this thing happened. Just didn't do anything. So, I say to you, members of the jury, how is it that they can so blithely say, 'Ah, Mr. Murnane, you just didn't quite prove your case quite far enough, you haven't got us yet, and we won't bring anybody here to help you.' Ah, they have the right to do so, but I say that under the law of this case you people have the...