Summary
upholding the district court's denial of a motion for a new trial based on improper closing argument by counsel where the district court ruled that the argument was not prejudicial
Summary of this case from ABOUD v. DYABOpinion
No. 45863.
April 16, 1976.
Trial — closing argument — improper comment.
1. It is improper in closing argument for counsel to comment on adverse inferences to be drawn from failure of his opponent to introduce deposition testimony which was equally available to both parties, even if the deponent is a person whose testimony would naturally tend to favor that opponent.
New trial — grounds — improper argument — discretion of trial court.
2. Whether improper closing argument had a prejudicial impact on the jury so as to require a new trial is a matter within the discretion of the trial judge who was present when the improper argument was made and could observe its impact on the jury.
Action in the Hennepin County District Court for personal injuries allegedly sustained by plaintiff in a collision between his motorcycle and an automobile driven by Charles Thomas Mart, now deceased. Marguerite Mart, special administratrix of the estate of Charles Thomas Mart, was substituted as defendant. The case was tried before A. W. Danielson, Judge, and a jury, which found in a special verdict that both drivers were causally negligent, that the negligence of plaintiff contributed 10 percent and the negligence of decedent 90 percent to the accident, and that plaintiff's damages were $101,970.23. The court found plaintiff also sustained property damage in the sum of $300 and ordered judgment accordingly. Defendant appealed from the judgment entered. Affirmed.
Sahr, Kunert Tambornino, Roger T. Sahr, and Peder B. Hong, for appellant.
DeParcq, Anderson, Perl Hunegs, Stephen S. Eckman, and O. C. Adamson II, for respondent.
Heard before Todd, Yetka, and Breunig, JJ., and considered and decided by the court en banc.
In this action arising out of an automobile-motorcycle collision, defendant appeals from a judgment alleged to have been the result of improper and prejudicial closing argument by plaintiff. We affirm.
On April 23, 1970, Charles Mart's automobile collided with plaintiff's motorcycle at the intersection of Broadway Street and University Avenue in northeast Minneapolis. Mart was making a left turn from the center westbound lane of Broadway onto University southbound. Plaintiff was traveling straight through the intersection on Broadway eastbound, either in the right lane, which he testified was open, or by making an illegal pass between cars in the right lane and the curb, as one eyewitness testified. The jury found that both were causally negligent but that 90 percent of the combined negligence was attributable to Mart. Thus, under Minn. St. 604.01, subd. 1, plaintiff's contributory negligence did not bar recovery.
Before trial, plaintiff took the deposition of Mart, who died shortly thereafter from cancer. Under Rule 32.01 (3) (a), Rules of Civil Procedure, either party could have used this deposition at trial. Defendant summarized the content of this deposition in opening statement. It must be presumed from Code of Rules for the District Courts, Part I, Rule 27(c), that defendant intended to introduce the deposition, although defendant now argues that it was assumed plaintiff would do so. In any event, the deposition was never introduced. Plaintiff commented in closing argument on the failure of defendant to introduce the deposition, implying that such testimony would have been unfavorable to defendant. Defendant interrupted with an objection and a corrective instruction was immediately given.
The special administratrix of his estate was substituted as the defendant.
In Kmetz v. Johnson, 261 Minn. 395, 402, 113 N.W.2d 96, 101 (1962), we held that no adverse inference is permissible from the failure of one party to introduce evidence equally available to both parties, since under our liberal discovery rules the party seeking to benefit from such an adverse inference could himself obtain and introduce the evidence. The rationale for this holding applies as well where evidence available to both parties is deposition testimony of a person who would naturally tend to favor the party against whom the adverse inference is sought to be established. If there was any actual testimony in the deposition of Mart which was adverse to defendant, plaintiff could have introduced the deposition. Therefore, plaintiff's closing argument was improper.
In denying defendant's motion for a new trial, the judge determined that the argument had not prejudiced the jury. Since the trial judge was present when the improper argument was made and could observe its impact on the jury, his determination is generally entitled to deference absent clear abuse of discretion. Lee v. Lee, 248 Minn. 496, 502, 80 N.W.2d 529, 534 (1957). While we do not condone improper argument of this nature, we find no reason on this record to disagree with the trial court's determination that it was not prejudicial.
Affirmed.