Hill v. Husky Briquetting, Inc.

• Decision Date: 20 September 1977
• Docket Number: Docket No. 28396
• Citation: 78 Mich.App. 452,260 N.W.2d 131
• Parties: Helen R. HILL, as Administratrix of the Estate of Anita Hill, Deceased, and as parent and next friend of Betty Jo Hill, a minor, Plaintiffs-Appellees, v. HUSKY BRIQUETTING, INC., Defendant-Appellant. 78 Mich.App. 452, 260 N.W.2d 131
• Court: Court of Appeal of Michigan — District of US

Page 131

260 N.W.2d 131

Helen R. HILL, as Administratrix of the Estate of Anita

Hill, Deceased, and as parent and next friend of

Betty Jo Hill, a minor, Plaintiffs-Appellees, v. HUSKY BRIQUETTING, INC., Defendant-Appellant.

Docket No. 28396.

78 Mich.App. 452, 260 N.W.2d 131

Court of Appeals of Michigan.

Sept. 20, 1977.

Released for Publication Dec. 8, 1977.

Leave to Appeal Denied March 2, 1978.

[78 MICHAPP 453] Ronald E. Westen, Detroit, for defendant-appellant.

Frederick D. Jasmer, Southfield, for plaintiffs-appellees.

Before BEASLEY, P. J., and V. J. BRENNAN and McDONALD, ^* JJ.

McDONALD, Judge.

This is the second appeal in an action brought for wrongful death and injuries resulting from inhaling fumes of carbon monoxide [78 MICHAPP 454] given off by defendant's charcoal briquettes. The first appeal resulted in a reversal of a directed verdict in favor of defendant prior to the impaneling of the jury, and remand for trial. Hill v. Husky Briquetting, Inc., 54 Mich.App. 17, 220 N.W.2d 137 (1974), affirmed, 393 Mich. 136, 223 N.W.2d 290 (1974). In the first appeal, certain facts relevant to a controlling point of law were stipulated by the parties. The Court of Appeals, in reversing the directed verdict entered in favor of the defendant, said:

"The reasoned rule expressed by the commentators and supported fully by Marietta (Marietta v. Cliffs Ridge, Inc., 385 Mich. 364, 189 N.W.2d 208 (1971).) requires that the question of adequacy of the warning be determined by the jury. In this case and on this record the facts were not so clear that all men would draw the same conclusion. The question, although close, is properly for the jury to consider." 54 Mich.App. at 25, 220 N.W.2d at 141.

On its own motion, pursuant to GCR 1963, 865.1(7), the Supreme Court peremptorily affirmed the decision of the Court of Appeals. The Supreme Court ruled:

"In Marietta v. Cliffs Ridge, Inc., 385 Mich. 364, 369-370, 189 N.W.2d 208 (1971), we said:

" 'The customary usage and practice of the industry is relevant evidence to be used in determining whether or not this standard has been met. Such usage cannot, however, be determinative of the standard.' "

"To the extent that Cheli v. Cudahy Brothers Co., 267 Mich. 690, 255 N.W. 414 (1934), and Barton v. Myers, 1 Mich.App. 460, 136 N.W.2d 776 (1965), declare a contrary rule, they no longer will be followed." 393 Mich. at 136, 223 N.W.2d 290, 291.

Plaintiffs commenced their action against the [78 MICHAPP 455] defendant charcoal briquette manufacturer for the wrongful death of Anita L. Hill and injuries to Betty Jo Hill.

Helen R. Hill, mother of the deceased and injured children, was using defendant's briquettes in a grill or brazier in their bedroom to provide heat for both herself and the children. Mrs. Hill's husband left her during 1970, and she was receiving sustenance for herself and her five children from Aid to Families with Dependent Children. Mrs. Hill was purchasing an old home in Detroit for which ADC had provided the requisite down payment. This home had formerly been heated by a gas space heater but, following a long-running dispute concerning the gas bill, the gas had been cut off. The termination of the gas supply occurred some weeks prior to the incident presently in question. The previously mentioned gas heater was the only source of heat, there being no usable furnace anywhere else in the house. Mrs. Hill began heating her home by burning charcoal around the time of Halloween, and continued in this way up until the day after Thanksgiving. On Thanksgiving day, she called the hospital because both she and the other members of her family were not feeling well. On the day after Thanksgiving, Mrs. Hill woke up to find that her daughter Anita, age 11, had died during the night. One daughter, Betty Jo, age 4, required in-patient treatment at the hospital.

It was the plaintiff's claim at trial that the charcoal bag did not contain an adequate warning to inform the user of the dangers involved in using the product. The bag in which the charcoal was contained had the following legend printed on it: "CAUTION FOR INDOOR USE COOK ONLY IN PROPERLY VENTILATED AREAS". The jury [78 MICHAPP 456] returned a $75,000.00 verdict (later reduced to $67,500.00) for the wrongful death of Anita Hill, age 11, who lost her life from inhaling the fumes from charcoal. A $25,000.00 verdict was rendered in favor of Betty Jo Hill, who completely lost the power of speech for a time, requiring hospitalization, and subsequent visits to her physician. On appeal, the amount of these verdicts is not claimed to be excessive.

This appeal is based primarily on the alleged prejudicial argument and other misconduct of counsel for the plaintiff which allegedly denied defendant a fair trial. The trial judge, in his opinion denying defendant's motion for new trial in regard to prejudicial argument of plaintiff's counsel, said:

"The remarks made during argument should be considered in the light of the entire transcript of what transpired at the trial as well as what both sides said during the argument. The trial transcript, I believe, will reveal no reticence whatsoever on the part of Defendant's counsel to object when he felt the occasion warranted it. Yet, in essence, no objections were made during the argument to the allegedly inflammatory and improper portions alluded to after the fact and upon motion for a new trial.

At the very least, the court could have dealt with such objections timely and, in some instances, perhaps, would have sustained objections thereto. In addition, the court would, where appropriate, terminate improper argument and instruct both counsel and the jury appropriately."

At the close of plaintiffs' counsel's argument, the defendant's counsel made a motion for a mistrial or "appropriate instructions of the Court". No specific curative instructions were requested. The trial court denied the motion for a mistrial and, in [78 MICHAPP 457] the absence of a specific request by defendant for a curative instruction, did instruct the jury not to let sympathy or prejudice influence their decision. The trial court went on to caution the jury that the evidence to be considered consisted only of the testimony of the witnesses and the exhibits offered and received by the court. The trial court further instructed the jury that opening statements and final arguments of counsel are not evidence, and that they should disregard anything said by an attorney which is not supported by the evidence, or by their own general knowledge and experience. The court also told the jury that the defendant corporation was entitled to the same fair and impartial treatment as they would give an individual under like circumstances.

The Supreme Court, in Koepel v. St. Joseph Hospital, 381 Mich. 440, 442-443, 163 N.W.2d 222, 224 (1968), said:

"Too much stress cannot be laid upon the postulate that something more than an objection to allegedly improper jury argument is requisite to the right of appellate review of such an argument. This has been pointed out so many times as to make of the postulate a veritable commonplace. If counsel defending thinks that his defense has been hurt incurably by a prejudicial closing argument, his remedy of prompt motion for mistrial is open to him. If on the other hand the situation in his view is reparable by the...