Janssen v. Neal

• Decision Date: 22 November 1974
• Docket Number: No. 44477,44477
• Citation: 302 Minn. 177,223 N.W.2d 804
• Parties: Harvey A. JANSSEN, as Trustee for the Heirs and Next of Kin of Gary Lee Janssen, Deceased, and Harvey A. Janssen, Individually, Appellant, v. Clarence E. NEAL, Respondent.
• Court: Minnesota Supreme Court

Page 804

223 N.W.2d 804

302 Minn. 177

Harvey A. JANSSEN, as Trustee for the Heirs and Next of Kin

of Gary Lee Janssen, Deceased, and Harvey A.

Janssen, Individually, Appellant, v. Clarence E. NEAL, Respondent.

No. 44477.

Supreme Court of Minnesota.

Nov. 22, 1974.

Syllabus by the Court

1. Statements by counsel in closing argument will not be considered misconduct sufficient to require a new trial unless prejudice is caused to the other party.

2. It was prejudicial error for the trial court to instruct the jury based on Minn.St. 169.48 and 169.49 in view of the fact that the court did not inform the jury of the prior improper argument on these statutes. Such error may have left the jury with the impression that decedent violated the statutes.

3. Under the unusual facts and circumstances in this case, it was prejudicial error to admit evidence as to speed at a point some distance away from the accident.

Prindle, Maland & Ward and W. D. Prindle, Montevideo, for appellant.

Winter, Lundquist, Sherwood & Athens, Bruce E. Sherwood, and Marvin E. Lundquist, Wheaton, for respondent.

Heard before PETERSON, KELLY, and YETKA, JJ., and considered and decided by the court en banc.

KELLY, Justice.

This is a wrongful death action to recover damages sustained by the heirs and next of kin of decedent Gary Janssen as a result of his death in a collision between his motorcycle and the rear of defendant's pickup truck. The jury returned a special verdict finding plaintiff's decedent and defendant each 50-percent causally negligent. Plaintiff's motion for a new trial was denied and he appealed from the judgment dismissing his cause of action. Reversed.

The accident giving rise to this action occurred on July 31, 1971, at approximately 9:30 p.m., on County Road No. 4, in Chippewa County, Minnesota. Both decedent's motorcycle and defendant's truck were proceeding south on the two-lane, blacktop highway, which was straight and level at the scene of the accident. The weather was clear, the road dry, and the light condition was dusk bordering on darkness, sunset having occurred at 8:50 p.m. The pickup truck was following a self-propelled combine at a distance of 150 to 170 feet, each traveling at the rate of about 15 miles per hour. Defendant testified that he saw in his rear-view mirror the motorcycle headlight approaching, but could not determine its distance or speed. Decedent's motorcycle collided with the left rear of the pickup box and came to rest on its left side in the center of the southbound lane. The motorcycle left a single skid mark, which began about 20 feet north of where the motorcycle came to rest and ran for about 10 feet. Damage to the truck consisted of a bent license plate, a bent angle iron on the corner of the truck box, and a bent fender. Damage to the motorcycle consisted of a broken rear wheel; damaged headlight, fender and speedometer; and bent handlebars. The first person to reach the scene of the accident was one Dennis Schulz, who testified that he observed the decedent still astride the motorcycle, lying on his left side with no apparent injuries except that he was bleeding from his nose. There was an abrasion on the left front of decedent's helmet and the medical cause of death was later stipulated to be a basal skull fracture.

Plaintiff sought to establish that the accident was caused by inadequate lighting on the rear of the pickup, and to this end elicited testimony concerning the poor condition of the pickup's one taillight from a mechanic who inspected it about 4 months after the accident. The defendant testified on this point that he had checked the taillight prior to starting out on the evening of the accident and found it in working order.

Defendant sought to establish contributory negligence of the decedent in operating his motorcycle at an unreasonably high speed prior to the accident. Through testimony of Keith Levitz, who had been with the decedent immediately prior to the accident, defendant attempted to show that the boys had departed from a park one-half mile from County Road No. 4 at the same time and that decedent had gained about one-fourth mile over Levitz during the stretch between the park and the highway even though the witness had been traveling at 30 to 40 miles per hour. Another companion at the park who was driving his car at about 35 to 40 miles per hour along the same route testified that, upon reaching the intersection of County Road No. 4 and the road leading from the park and turning south, he had a glimpse of decedent's taillight but did not see him again until at the scene of the accident, about three-fourths of a mile south of the intersection.

The issues on this appeal are:

(1) Whether certain statements made by defense counsel in his final argument constituted misconduct so prejudicial as to require a new trial;

(2) whether the trial court committed reversible error with respect to instructions given, and requested instructions refused;

(3) whether the trial court committed reversible error in admitting evidence of decedent's speed at a point remote from the accident scene to prove speed at the time of the accident.

1. Plaintiff complains of three specific comments made to the jury in defense counsel's final argument. The first is as follows:

'* * * You're not supposed to change your own analysis simply to make sure that the next of kin recover something. And it's not easy. It's a tough proposition because there exists in all of us--And we know this.--there exists a lot of feeling, a lot of feeling for the surviving family of an accident victim who has died on the highways. It's happening perhaps to many of us. I can tell you my own brother was killed on a motorcycle, so I know the feelings that exist. And there will be a great temptation to want to award the Janssens something.'

Plaintiff contends, first, that this comment is improper as an appeal for sympathy, citing McCormick v. Malecha, 266 Minn. 33, 122 N.W.2d 446 (1963), as analogous. In that case, plaintiff's counsel in final argument staked his reputation as a lawyer upon the veracity of his client's testimony. This court agreed that an attorney should not attempt to endow his client's cause with the merits of his own personal standing in the community, but did not think such conduct demanded a new trial. Plaintiff also argues that the above quoted comment is objectionable because it is not supported by the record, citing Ellwein v. Holmes, 243 Minn. 397, 68 N.W.2d 220 (1955). The misconduct in that case was counsel's representation to the jury as fact, material on the issue, that which he had tried but failed to elicit from a witness. In this case, these remarks were, to say the least, inappropriate and should not have been made. If they were the only grounds asserted for a new trial, however, we would undoubtedly uphold the trial court's ruling that they were not so prejudicial as to require a new trial.

The second remark claimed to be prejudicial is as follows:

'* * * Will the bike travel 70? You bet those motorcycles will go 70. Unprotected death traps that they are, they'll go that and faster. Twenty horsepower, Bridgestone, 175; that machine will do it. It will.'

Plaintiff argues that there is no evidence in the record concerning the maximum speed capability of decedent's motorcycle and that reference to motorcycles as 'unprotected death traps' is a provocative and unwarranted appeal to pure prejudice. Citing Hardy v. Anderson, 241 Minn. 478, 63 N.W.2d 814 (1954), defendant argues that the testimony of Keith Levitz, summarized above, supports the inference that the motorcycle had been traveling at 70 miles per hour, and that counsel was entitled to present his client's case forcefully, even if this entailed drawing factual inferences from conflicting evidence.

The third statement alleged to be prejudicial is as follows:

'The evidence should also be considered, folks, in the light of whether or not another statute was violated, that being a statute that requires that headlights on a motorcycle be such that they illuminate objects up to 500 feet away. Well, I don't know whether the headlight did or not. It was dusk. Headlights--I'm not sure that they were all that important. And I fear that I would be asking on that for you to indulge in speculation if I suggested that maybe his headlight didn't illuminate objects satisfactorily at 500 feet away, assuming headlights were necessary at the time of the accident, and assuming they happened to be on.'

Plaintiff correctly characterizes this as a misstatement of the law, the correct law being set forth in the distribution-of-light statute, Minn.St. 169.60. Defendant concedes that the statement was incorrect, but contends it was not prejudicial because defendant's counsel also told the jury that their application of this law would require speculation on their part.

Whether misconduct of counsel in argument to the jury is grounds for a new trial is within the discretion of the trial court, and its action will not be reversed on appeal except for a clear abuse of discretion. Patton v. Minneapolis St. Ry. Co., 247 Minn. 368, 77 N.W.2d 433, 58 A.L.R.2d 921 (1956). See, 14A Dunnell, Dig. (3 ed.) § 7102. The primary consideration in determining whether to grant a new trial for improper remarks of counsel is prejudice. Boland v. Morrill, 270 Minn. 86, 132 N.W.2d 711 (1965). The trial court in its memorandum agreed that the remarks here complained of were not appropriate, but was of the opinion that they were not so prejudicial as to warrant a new trial.

With respect to the second statement, arguing that decedent's motorcycle was capable of going 70 miles per hour and referring to motorcycles as 'unprotected death...