Torre v. Harris-Seybold Co.

Decision Date06 May 1980
Docket NumberHARRIS-SEYBOLD
Citation404 N.E.2d 96,9 Mass.App.Ct. 660
PartiesCarlo TORRE v.CO.
CourtAppeals Court of Massachusetts

Thomas J. Donoghue, Springfield, for defendant.

John H. Madden, Jr., Springfield, for plaintiff.

Before BROWN, GREANEY and KASS, JJ. GREANEY, Justice.

This is a products liability case, predicated on the negligent design of a precision paper cutting machine manufactured by the defendant and known as the "Seybold Saber II Cutter." The plaintiff was injured on April 27, 1970, while working on the machine as an employee of the Milton Bradley Company in East Longmeadow, when a hydraulically operated clamp designed to hold in place the materials being sheared during the machine's cutting cycle came down and crushed a portion of his left hand. The action has been tried four times: once before a master, facts not final, and three times to juries in the Superior Court. The master issued a report dated September 4, 1975, which found that the machine was defectively designed in certain aspects and that the defects were the proximate cause of the plaintiff's injuries. He assessed damages in the amount of $30,000. The case was then tried to a jury in May, 1976, which was unable to agree on a verdict, and a mistrial was declared. The case was again tried in March, 1977, to a jury which found for the defendant. After this jury verdict, the trial judge granted the plaintiff's motion for a new trial (Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974)), on the ground that the defense counsel's final argument improperly and prejudicially interjected the issue of workmen's compensation into the trial. The case was subsequently tried in March, 1979, to a jury (third jury trial) which found for the plaintiff and assessed damages in the amount of $40,000. The defendant argues that the judge erred in granting the plaintiff's motion for a new trial after the second jury trial. We have concluded that the judge did not abuse his discretion in allowing the motion and consequently affirm that order. The defendant also contends that the judge at the third jury trial erred in two evidentiary rulings and in declining to give a certain jury instruction requested by the defendant on the issue of its liability. We have concluded that the judgment entered on the jury verdict after the third jury trial is to be affirmed.

I. MOTION FOR NEW TRIAL.

At the close of his summation to the jury in the second jury trial, counsel for the defendant argued as follows:

"Well there may be other suggestions made to you about industry treating its employees as economic servants and throwing them on the junkpile when they're injured, and that kind of argument. And I say to you that's a completely unfair argument, because as working people, you know that industry today doesn't throw people on the junkpile. We have laws to compensate people when they are injured, and it isn't fair argument to address to you that kind of a suggestion, that this person was thrown on any economic junkpile because he injure(d) his hand.

"We know he got an injury. We're sympathetic about it. But unfortunately our society has not yet reached the point where we compensate people under all circumstances for wherever and however their injury occurred. If there's fault involve and they contributed to the happening of the accident, we don't reward them under present circumstances. If there's no fault involved, there is a compensation system for motor vehicles. But that's a limited part of our society now. We . . . could change all that, we could have a national health system so whether you're injured at home or at work in your automobile you get compensated for your medical bills and all. But we don't have that. We're under a fault system in this. And if you've caused your own injury well we have some protection for those people when they're at work and when they're injured at work. It isn't as if I slipped at my own house, unless I got a health and accident policy I don't recover. But at work, we know there's compensation for injuries at work. So don't be misled by that type of suggestion made to you."

The plaintiff's counsel did not draw the judge's attention to this portion of the closing when the summation was completed or prior to the charge. The defendant does not attempt to justify the argument 1 but contends only that the lack of an objection by plaintiff's counsel barred the judge from ordering relief by way of a new trial.

"It is the general rule in trials of both criminal and civil causes that where an improper argument is addressed to a jury the attention of the judge should be called to it at once." Commonwealth v. Richmond, 207 Mass. 240, 250, 93 N.E. 816, 820 (1911). Commonwealth v. Johnson, 374 Mass. ---, --- - --- a, 373 N.E.2d 1121 (1978), and cases cited. If the judge had denied the motion for a new trial because of the failure of plaintiff's counsel to seek a remedy during the trial proper, nothing of merit would be brought here for review. Commonwealth v. Johnson, supra at --- - --- b, 373 N.E.2d 1121. See also Giffin v. Ensign, 234 F.2d 307, 316 (3d Cir. 1956); Hobart v. O'Brien, 243 F.2d 735, 741-742 (1st Cir.), cert. denied, 355 U.S. 830, 78 S.Ct. 42, 2 L.Ed.2d 42 (1957). However, the defendant overlooks an important proposition central to our review of the judge's action, namely that by granting relief the judge exercised his discretion in favor of considering the question despite the lack of a request for relief at the trial (Raunela v. Hertz Corp., 361 Mass. 341, 345, 280 N.E.2d 179 (1972)) and determined that an injustice had occurred which could best be remedied by a new trial. Thus, we are passing on a discretionary ruling of a trial judge in a context where an abuse of discretion will be found only when the appellate court can say with substantial certainty that a reasonably conscientious judge faced with the same situation would not have concluded that the argument was prejudicial, that it might have affected the verdict, or that on a survey of the whole case a miscarriage of justice has resulted. 2 See Nicholas v. Lewis Furniture Co., 292 Mass. 500, 507, 198 N.E. 753 (1935); Spiller v. Metropolitan Transit Authy., 348 Mass. 576, 580, 204 N.E.2d 913 (1965); Saba v. Khouri, 357 Mass. 783, 260 N.E.2d 649 (1970). See also Davis v. Boston Elev. Ry., 235 Mass. 482, 502, 126 N.E. 841 (1920); Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 59-61, 80 N.E.2d 16 (1948); Commonwealth v. Levin, 7 Mass.App. ---, --- - --- c, 388 N.E.2d 1207 (1979). Our deference to the trial judge's role on these motions recognizes the historical antecedents of the power, as well as the principle that its wise exercise is not in derogation of the right of a trial by jury but is one of the historic safeguards of the right. Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350, 353-354 (4th Cir. 1941), and cases cited. It also reflects the obvious fact that the trial judge, when faced with this type of misconduct, is generally in the best position to determine whatever harmful effects may have resulted from the jury's exposure to improper argument. O'Neill v. Ross, 250 Mass. 92, 96, 145 N.E. 60 (1924). Shea v. D. & N. Motor Transp. Co., 316 Mass. 553, 555, 55 N.E.2d 950 (1944). Bowers, The Judicial Discretion of Trial Courts, § 18 (1931). "The test is not what we would have done if we were in the position of the motion judge . . . (r)ather it is whether . . . the record before us, warrants the action of the motion judge in ordering a new trial. We believe that it does and in this situation we do not allow ourselves the idle luxury of speculating on whether we would have acted differently if we had presided over the hearing on the motion for new trial." Commonwealth v. Cook, --- Mass. ---, --- d, 403 N.E.2d 363, 370 (1980).

An abuse of the judge's discretion has not been demonstrated in this case. Although the argument appears at first glance plausibly to contend that the plaintiff must establish fault to prevail, the last two sentences weave together the whole and unmistakably convey the message that the plaintiff's rights have been protected by workmen's compensation insurance. This is virtually admitted by the defendant (n.1, supra ). This insinuation of the existence of a possible collateral source of recovery lacked the approbation of the judge (a recommended procedure for forays into this area is discussed in Goldstein v. Gontarz, 364 Mass. 800, 814, 309 N.E.2d 196 (1974)), and is squarely condemned by our cases. West v. Molders Foundry Co., 342 Mass. 8, 9, 171 N.E.2d 860 (1961). Benson v. Guyette, 350 Mass. 759, 213 N.E.2d 388 (1965). Goldstein v. Gontarz, supra at 808-812, 309 N.E.2d 196. "(T)he implication of the settled law here and elsewhere is that (reference to workmen's compensation) is prejudicial unless in some way palliated." Id. at 808, 309 N.E.2d at 202. The merits of the case were close it had already deadlocked one jury and essentially came down to a duel of experts as to whether parts of the machine were defectively designed and whether the plaintiff was contributorily negligent so that the intrusion of the impermissible matter may have eased the jury towards a defendant's verdict by permitting speculation that the plaintiff's injuries had already been financially redressed and a verdict in his favor would lead to an unjust double recovery, or speculation that the real contest was between faceless insurance companies seeking to adjust the loss between themselves. See Schwartz, The Collateral-Source Rule, 41 B.U.L.Rev. 348 (1961). Additionally, the judge may have considered that the argument was the last substantive point made to the jury by defense counsel, that plaintiff's counsel did not effectively respond to it, 3 and that his own brief instructions on the rule of the closing arguments 4 did not amount to "rigorous and emphatic action" on his part "to make certain that the jury would disregard ...

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