Lapasinskas v. Quick

• Decision Date: 25 June 1969
• Docket Number: Docket No. 3322,No. 1,1
• Citation: 17 Mich.App. 733,170 N.W.2d 318
• Parties: Frank LAPASINSKAS, a minor, by his next friend, John Lapasinskas, Plaintiff-Appellant, v. Gary QUICK and Earl Quick, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 318

170 N.W.2d 318

17 Mich.App. 733

Frank LAPASINSKAS, a minor, by his next friend, John Lapasinskas, Plaintiff-Appellant, v. Gary QUICK and Earl Quick, jointly and severally Defendants-Appellees.

Docket No. 3322.

Court of Appeals of Michigan, Division No. 1.

June 25, 1969.

Released for Publication Sept. 16, 1969.

Kenneth J. Morris, Livonia, for plaintiff-appellant; Dann, Rosenbaum, Bloom & Kaufman, Detroit, of counsel.

Thomas H. Cannon, Rouse, Selby, Webber, Dickinson & Shaw, Detroit, for defendants-appellees.

Before HOLBROOK, P.J., and LEVIN and PRATT, ^* JJ.

LEVIN, Judge.

Plaintiff Frank Lapasinskas was struck by a motor vehicle operated by the defendant Gary Quick and owned by the defendant Earl Quick. He appeals from a denial of his motion for new trial following a jury verdict of no cause of action.

At the time of the accident Frank Lapasinskas was 2 years of age. His cause of action and his father's separate cause of action were both stated in one complaint. The defendants' answer asserted as an affirmative defense that the accident was caused by the child running out from behind parked cars into the defendant's vehicle and that the father was negligent in failing to keep his son off the street.

The Lapasinskases moved to strike that defense, for separate trials and for an order 'directing defendants and their counsel, to refrain from any reference, suggestion, statement, testimony, argument or insinuation charging or implying negligence on the part of plaintiff John Lapasinskas (the father) or any other person as constituting negligence, guarding (sic), interfering with or limiting damages recoverable in this action.' The motion asserted that any attempt to introduce evidence on the subject of defendants' affirmative defense 'will be highly prejudicial to the claims of each of said plaintiffs and will do serious and irreparable damage notwithstanding any possible instructions from the trial court.'

The trial judge ordered separate trials and that the claim of the child Frank be tried first. Subsequently, he filed an opinion striking the affirmative defense insofar as it related to the child's case. In the same opinion the judge denied the request 'that an order be entered in the case of the minor, directing the defendants and counsel to refrain from making any suggestion, any testimony and any argument of alleged negligence on the part of John Lapasinskas (the father) * * *. The court will expect that counsel and parties will follow the law with respect to the introduction of such evidence and in argument. If during the course of the trial objectionable material is attempted to be submitted, counsel for the plaintiff at that time may make appropriate objection.'

At the trial the defendants' attorney asked the court to inquire of the jurors whether they had explained to their children how to cross the street. During his opening statement he remarked, 'It is very interesting. The boy's father was across the street in this area here somewhere. They say it's Gary's (the driver's) fault. Apparently this boy had a habit of running back and forth,' at which point objection was made by the plaintiff's counsel. In his closing argument defendants' counsel referred to the fact that the child's father was only a short distance from him and that he was supposed to be watching the child ('Yeh, I'll watch Frankie') but that he had not been very attentive as the last time he saw Frankie was 8 minutes before the accident. ('This is the father who is watching Frankie. He didn't see him for 8 minutes'). At the conclusion of his argument he reiterated the impermissible innuendo ('I will ask you something: If this situation is that dangerous, what should the father have done? If anybody, it seems to me, if anybody would ask anybody whose fault the accident is') at which point argument was broken off by plaintiff's objection which was sustained by the court.

In instructing the jury, the trial judge cautioned that 'whether the father used sufficient care watching the children or keeping the child close to him or instructing the child has nothing to do with this case.'

Despite the just quoted cautionary instruction, we think this case must be reversed and a new trial ordered because 'the studied injection into this child's case of the subject of parental fault, contributory or otherwise, constitutes reversible error.' Elbert v. City of Saginaw (1961), 363 Mich. 463, 482, 109 N.W.2d 879, 888, per Black, J., concurring.

The defendants were represented by experienced counsel who knew better than to inject the issue of the father's negligence. Yet he deliberately and skillfully injected this impermissible argument. Cf. Felice v. Weinman (1964), 372 Mich. 278, 280, 126 N.W.2d 107.

The plaintiff did what he could to protect himself. Anticipating the very argument that was made, he had sought the court's protection by motion in the nature of a motion In limine. ¹ The plaintiff's action in seeking the court's protection before the objectionable evidence was introduced was 'eminently proper.' McCullough v. Ward Trucking Co. (1962), 368 Mich. 108, 114, 117 N.W.2d 167. In McCullough the plaintiff requested that the trial court rule that the defendant's counsel was not to make any reference in the presence of the jury to the fact that the plaintiff was eligible for workmen's compensation insurance benefits. The trial judge agreed with the plaintiff that the defendant should not introduce the subject but refused to rule it out in advance of the matter coming up at the time of trial. In an opinion in which 2 other justices joined, ² Mr. Justice Black criticized the failure of the trial judge to prevent the introduction before the jury of the inadmissible ³ and prejudicial subject of workmen's compensation benefits (pp. 114, 115, 117 N.W.2d pp. 170--171):

'The practice followed by plaintiff, prior to swearing of the jury and at chambers, was eminently proper. See Ruediger v. Klink (1956), 346 Mich. 357, 372, 78 N.W.2d 248. The trial judge's sound ruling of inadmissibility considered, the result should have been an order that defendants, desiring as they said to make a record of the claimed right 'to go into the workmen's compensation angle in this case,' should proceed to make an offer of the proposed proof at chambers under Court Rule No. 37, § 15 (1945). Instead, the trial judge said that if counsel could not agree 'to abide by the announced advance ruling of the court,' that 'the matter should be raised at the trial by questions propounded and objection made and ruling obtained therein.' Thus the injecting question was asked, the objection was made, and the advance ruling of inadmissibility was repeated, all in the presence of the jury.

'If it is proper--and it is--for defense counsel to seek at chambers an advance ruling of suppression when a plaintiff's counsel proposes without disclosed right to inject the subject of the defendant's insurance coverage, so is it proper for a plaintiff to seek such ruling of suppression when his opponent proposes without disclosed right to inject the subject of payment of compensation, or availability of compensation, when the action is brought under the auspices of the 1952 amendment (C.L.S.1956, § 413.15 (Stat.Ann.1960 Rev. § 17.189)). This practice of calculated and unwarranted introduction before the jury of like matters of prejudice should be stopped quite as promptly whether a plaintiff or a defendant is the culprit.' (Emphasis supplied.)

We have no way of knowing whether the defendants' injection of this issue influenced the jury or whether the trial judge's cautionary instruction in fact removed any effect adverse to plaintiff's claim. See Clark v. Grand Trunk W.R. Co. (1962), 367 Mich. 396, 402, 116 N.W.2d 914; Cf. Felice v. Weinman, Supra. We...