Mele v. Becker

• Decision Date: 17 May 1965
• Docket Number: No. 2,No. 136,136,2
• Citation: 1 Mich.App. 172,134 N.W.2d 846
• Parties: Dominic MELE, Plaintiff-Appellant, v. Philip BECKER, Sr., and Philip Becker, Jr., Defendant-Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 846

134 N.W.2d 846

1 Mich.App. 172

Dominic MELE, Plaintiff-Appellant, v.Philip BECKER, Sr., and Philip Becker, Jr., Defendant-Appellees.

Cal. No. 136.

Court of Appeals of Michigan, Division No. 2.

May 17, 1965.

Joseph R. Joseph, Flint, for appellant.

Douglas M. Philpott, Flint, for appellees.

Before LESINSKI, C. J., and BURNS and FITZGERALD, JJ.

BURNS, Judge.

In this cause, plaintiff appeals a jury verdict of no cause of action.He claims that he was prejudiced by certain remarks of a presiding judge to a jury panel as part of a general indoctrination on the court system and on the role of the jurors.

The February term jury panel reported to the presiding judge for an indoctrination lecture prior to reporting to any courtroom for jury duty.During the course of the lecture, the judge stated that in civil cases, the good cases are settled and the difficult ones go to trial.

The same day the plaintiff's case was heard by a jury but before a different judge.The jury was out for ten hours and returned a verdict of no cause of action.Plaintiff claims that the aforementioned remark by the presiding judge, not the trial judge, prejudiced his cause.

The remarks of the presiding judge were not stenographically recorded, but the fact of their utterance was brought out in voir dire examinations of causes heard subsequent to the plaintiff's case.

The only question for consideration by this Court is whether the remark of the presiding judge to the jury panel in an indoctrination lecture to the effect that in civil cases the good cases are settled and the difficult ones go to trial, sufficiently prejudiced the cause of the plaintiff in this action so as to deprive him of a fair and impartial trial before a fair and impartial jury.

It seems to be the current practice for presiding judges to give a 'fireside chat' to the prospective jurors before they are impaneled to attempt to acquaint them with their duties and responsibilities in this unfamiliar task.This initiation of a jury panel at the beginning of each term was once frowned upon by the courts but today has generally been accepted, whether the remarks are made extemporaneously by the judge or whether they are given to the jurors in the form of a pamphlet.People v. Fisher(1930), 340 Ill. 216, 172 N.E. 743;People v. Cowan(1941), 44 Cal.App.2d 155, 112 P.2d 62;Gordon v. Farmer City Cheese Co.(1961), 32 Ill.App.2d 85, 177 N.E.2d 18

But there are certain guidelines that must be followed by the judge in carrying on this indoctrination.He must not make suggestions or statements which are likely to influence the decision of the jurors when they are called upon later to sit in a given case.Further, he should avoid misstatements of the law, remarks disparaging any defenses which may be made in cases to be tried, and also any references to particular cases which might come before the jurors.Annot., 89 A.L.R.2d 234(1963).Such acts on his part will be found to be reversible error by most appellate courts.Gross v. Commonwealth(Ky.1953), 256 S.W.2d 366.

It must be kept in mind that the making of these introductory remarks in themselves is not objectionable.'No litigant has a right, constitutional or otherwise, to have his case tried before ignorant jurors.To acquaint the juror with his duties and responsibilities in a new environment and to increase his understanding of the processes of a trial can hardly be objectionable in itself.'People v. Izzo(1958), 14 Ill.2d 203, 151 N.E.2d 329, 333, 89 A.L.R.2d 187.

Appellate courts have not seen fit to overturn a decision of a trial court merely on the basis of some erroneous statement made by the presiding judge in his preliminary remarks.Rather, these courts have found that some prejudice must be proved by the complaining party because of these remarks.State v. Miller(1913), 90 Kan. 230, 133 P. 878;People v. Hawks(1919), 206 Mich. 233, 172 N.W. 405;People v. Brown(1927), 240 Mich. 59, 214 N.W. 935;People v. Fisher(1930), 340 Ill. 216, 172 N.E. 743;People v. Tennant(1939), 32 Cal.App.2d 1, 88 P.2d 937;People v. Izzo(1958), 14 Ill.2d 203, 151 N.E.2d 329.

Michigan has followed the general trend in this area.In People v. Hawks(1919), 206 Mich. 233, 172 N.W. 405, the trial judge instructed the jurors before they were impaneled, and then during the course of the trial, he referred to these preliminary instructions.Where counsel objected to the incorporation by reference of these remarks into the record, the court had this to say:

'A careful reading of these general instructions is convincing that what the court said to the jury at the time was proper, and was helpful to them in the duties which they were about to enter upon as jurors in the trial of the various cases which might be brought before them.Nothing having been brought to our attention which shows that the rights of the respondent were in any way prejudiced, we conclude that there is no merit in this contention of respondent's counsel.'People...