Reetz v. Kinsman Marine Transit Co.

• Decision Date: 23 December 1982
• Docket Number: Docket No. 63857
• Citation: 330 N.W.2d 638,416 Mich. 97
• Parties: Richard L. REETZ, Plaintiff-Appellant, v. KINSMAN MARINE TRANSIT COMPANY, Defendant-Appellee. 416 Mich. 97, 330 N.W.2d 638
• Court: Michigan Supreme Court

Page 638

330 N.W.2d 638

Richard L. REETZ, Plaintiff-Appellant, v. KINSMAN MARINE TRANSIT COMPANY, Defendant-Appellee.

Docket No. 63857.

416 Mich. 97, 330 N.W.2d 638

Supreme Court of Michigan.

Dec. 23, 1982.

Law Offices of Leonard C. Jaques, P.C. by Leonard C. Jaques, Detroit, for plaintiff-appellant.

Foster, Meadows & Ballard by John Arthur Hamilton, Detroit, and Miller & Stillman by Creighton E. Miller, Cleveland, Ohio, for defendant-appellee.

PER CURIAM.

Richard L. Reetz commenced this action against Kinsman Marine Transit Company to recover for injuries he sustained in September, 1974, while employed as a deckhand aboard Kinsman's vessel the Merle McCurdy. At that time, while engaged in a procedure to open the hatches on the vessel, Reetz fell backwards into an open hatch and plummeted approximately forty feet to the steel deck below.

Reetz alleged under the Jones Act, 46 U.S.C. Sec. 688, that his injuries were caused by Kinsman's negligence in failing to properly train Reetz or, alternatively, that Kinsman was liable because of the vessel's unseaworthiness. ¹ Kinsman countered that the accident occurred because of Reetz's own negligence in failing to follow direct orders from his first mate not to walk backwards on the hatches while opening them. At the trial, testimony by Reetz and the first mate directly conflicted as to whether such orders were ever given. No other testimony relating to the alleged orders was presented. ²

In closing argument, Reetz's attorney argued that Reetz's loss of earnings and earning capacity amounted to $400,000, while all his other damages would justify a total award of double that amount. Kinsman, however, argued that because Reetz was still employable the most he should recover was $40,000.

The jury returned a verdict of $800,000.

Kinsman's motion for new trial was denied, and it appealed, claiming that the conduct and argument of Reetz's counsel was so inflammatory that it denied Kinsman a fair trial. The attention of the Court of Appeals was directed to four areas of alleged misconduct: references to Reetz's ineligibility for workers' compensation or any other benefits; repeated references to multi-million dollar awards in other cases; unfounded allegations of coverup and perjury; and undue emphasis on Kinsman's corporate nature and its wealth as well as the wealth of George Steinbrenner III, chairman of the board of its parent corporation.

In an unpublished opinion, the Court of Appeals held that even though any one of the improper arguments alleged may not have been inflammatory or overly prejudicial, "taken as a whole they demonstrate a deliberate and calculated attempt to prejudice the jury" and as such require a new trial.

Reetz claims that the Court of Appeals erred because these issues were not properly preserved for appellate review, and even if they were properly considered none of the arguments amounted to error requiring reversal.

We find that, although the issue of the propriety of the arguments was not preserved by a request for a specific instruction or a motion for mistrial so as to guarantee Kinsman a right to review, some of the arguments were so improper that it was within the discretion of the Court of Appeals to review the record to assure that Kinsman obtained a fair trial. We further find that the arguments relating to multi- million dollar verdicts and the wealth and callousness of Kinsman were so improper and inflammatory that Kinsman was denied a fair trial. A new trial is required. Accordingly, we affirm the Court of Appeals, although on somewhat different grounds.

I

Reetz contends that the Court of Appeals should not have considered any of the claimed errors because they were not properly preserved for appellate review. The cases cited by Reetz in support of this argument stand for the proposition that a litigant has no right to appellate review unless he has requested a curative instruction or made a motion for mistrial. ³ Nevertheless, the rule is not an absolute bar to review, for it does not preclude an appellate court from correcting substantial errors which were not preserved in the trial court.

Our prior cases have clearly stated that incurable errors are not shielded from appellate review because an attorney fails to request what in that case would be a futile instruction. ⁴ The "no objection[416 MICH 102] --no ruling--no error presented" rule requires counsel to seek to have error cured before the case is submitted to the jury. When a cure is not feasible, that rule need not be invoked. ⁵ Where improper conduct by one or both parties influences the outcome of a trial, an appellate court may reverse although the appellant's attorney did not seek to cure the error.

Some of our earlier cases have indicated that if an error is incurable, the party claiming prejudice should move for a mistrial. ⁶ Although such a motion is appropriate, it is not mandatory. A party may have such an investment in time and money in a trial at the point when incurable error arises that he would rather see the case go to the jury, hoping that the jurors will be able to ignore the improper argument. Such a decision is eminently reasonable, both for the individual litigant and the judicial system as a whole. A trial which has consumed valuable private and public resources need not be aborted because the jury may have been improperly influenced or distracted by closing argument.

When reviewing an appeal asserting improper conduct of an attorney, the appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. ⁷ If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted. ⁸ Tainted verdicts need not be allowed to stand simply because a lawyer or judge or both failed to protect the interests of the prejudiced party by timely action. ⁹

In the instant case some of the alleged errors were incurable, ¹⁰ others curable, ¹¹ and still others not even error. ¹² We will discuss each category of error raised by the appeal in order to give some guidance to both bench and bar for future cases.

II

A. Improper Reference to Workers' Compensation Benefits.

In his opening argument, Reetz's attorney made the following statement:

"Now all of us are familiar with the concept of workman's compensation, because this is the remedy for a person who is working as an employee in a landlocked or shore-site employment situation * * * [A] seaman is excluded from the general category of employees, * * * he has no right to any kind of compensation."

This statement was improper for two reasons. First, our prior cases have made it clear that it is not relevant whether or not a plaintiff seeking recovery for personal injury has other remedies available and, therefore, the topic should not be raised before the jury. ¹³ Second, the last sentence of the statement is simply untrue; Reetz was entitled to receive maintenance and cure benefits. ¹⁴

If these were the sole errors committed, we would not remand for a new trial. The prejudice caused by reference to workers' compensation could have been cured by an instruction from the bench to the effect that sympathy or prejudice must not influence the jury's decision. ¹⁵ Such a readily cured error will not generally be reviewed unless properly preserved for appeal. In this instance there was no objection to the statement.

The incorrect portion of the statement is also not a basis for reversal in this case because during examination of one of Kinsman's witnesses, the facts that Reetz had a right to maintenance and cure and that Reetz did receive such payments were clearly brought out. Any prejudice caused by the statement was thereby cured and the error rendered harmless.

B. References to Large Awards in Other Cases.

During his closing statement, Reetz's attorney referred to multi-million dollar verdicts in other cases.

The arguments complained of include the following references:

"Now I know, for example, circumstances when we talk about in terms of 'six million dollar man'. * * * All we can do is go by history and what they have. In other words, what is it when you take away a man, all of his senses, all of his ability to move, a quadriplegic, loss of both arms and legs and this kind of thing, we have a circumstance where this could be up to a $7,000,000 award.

* * *

"So what are you dealing with? Well, you're dealing with a man that we know. We read the papers; we know what happens; a person commits--tries to commit suicide and they don't get enough oxygen and they come back with over a $3,000,000 award."

Although these arguments were objected to and the objection sustained, in his rebuttal, Reetz's attorney continued the references. ¹⁶ In one form or another, Reetz's attorney managed to mention million-dollar awards seven times, even though objections to these arguments were made and sustained on four occasions.

Such references are improper and should not be permitted. ¹⁷ A one-time casual or vague reference to a large verdict in another case may not be sufficiently prejudicial to require a new trial. ¹⁸ Also, immediate instruction by the court may cure any error. ¹⁹ In this case, however, the judge failed to instruct the jury to ignore these references and the references were so numerous that it is doubtful any instruction would have been effective.

Under these circumstances, a new trial is required. We cannot with confidence conclude that Kinsman's...