Koepel v. St. Joseph Hospital and Medical Center

• Decision Date: 27 December 1968
• Docket Number: No. 6,6
• Citation: 381 Mich. 440,163 N.W.2d 222
• Parties: Louis D. KOEPEL, Plaintiff and Appellant, v. ST. JOSEPH HOSPITAL AND MEDICAL CENTER, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 222

163 N.W.2d 222

381 Mich. 440

Louis D. KOEPEL, Plaintiff and Appellant, v. ST. JOSEPH HOSPITAL AND MEDICAL CENTER, Defendant and Appellee.

No. 6.

Supreme Court of Michigan.

Dec. 27, 1968.

Wisti, Jaaskelainen & Schrock, Hancock, for plaintiff-appellant.

McLean & Healy, Houghton, for defendant-appellee.

Before the Entire Bench.

BLACK, Justice.

The question posed for current review was dealt with below as in syllabi 4 and 5 outlined (8 Mich.App. at 610). It is whether the technical misstatement of plaintiff's counsel, made in closing jury argument ('We subpoenaed it (the operating table) but it did not show up.'), constituted reversible error.

We hold it did not for two reasons. One is that the quoted error of counsel did not rise to any plane of prejudice according to the standard of regularly cited Dikeman v. Arnold, 83 Mich. 218, 47 N.W. 113. The other is that the defendant failed to save this question for review, either by motion for misstrial or request for corrective instruction.

First: Dikeman proceeds (pp. 218, 219, 47 N.W. p. 114):

'Various exceptions were taken to the remarks of Mr. Boudeman, one of the attorneys for the plaintiff, 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.'

Definitely, there is not here before us that kind of jury argument which is so prejudicial as to be beyond repair--by curative instruction. Such an argument was held to warrant reversal, though no curative request was made, in Steudle v. Yellow & Checker Cab & Transfer Co., 287 Mich. 1, 282 N.W. 879. A classic as well as salty example thereof appears in Justice Grant's opinion of Andrews v. Tamarack Mining Co., 114 Mich. 375, 384, 72 N.W. 242. There the plaintiff's attorney reviewed the alleged misdeeds of the defendant's foreman this way:

'Tom Maslin, with his little soul, thought more of the cost of sending those men to put timbers in there than he did of the human lives that were under his control; and that ten million souls of men like that could get inside a mustard seed and never lack for room.' ¹ (p. 384, 72 N.W. p. 245).

Second: Too much stress cannot be laid upon the postulate that something more than an objection[381 Mich. 443] --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 trial judge, a formal request for judicial correction is not only in order but tactically valuable. So, when the defendant conceives himself prejudiced by factual misstatements or inflammatory forensics delivered in the course of final argument, and yet does not want to go through another trial via motion for mistrial, it is highly important that he ask for and obtain relief through an affirmative request which, couched in his own needful language rather than the possiby more casual idiom of the trial judge, will effectively erase the item or items of concern.

Really, this is a most effective means of repair. Nothing takes more sting, out of an opponent's specifically identifiable and allegedly prejudicial mistake or conduct committed during final argument, than a fair...