Opinion
Docket No. 63207.
Decided December 27, 1979.
On application by the plaintiff for leave to appeal the Supreme Court, in lieu of granting leave to appeal, reversed the judgments of the Court of Appeals and the Leelanau Circuit Court, and remanded the case to the circuit court for a new trial. Rehearing denied post, 1165.
Clancey Price, P.C., for plaintiff.
Cholette, Perkins Buchanan (by Kenneth L. Block) for defendants.
The question posed for review in the instant matter is whether, in this action for damages brought pursuant to the no-fault act, the defense attorney's remarks in closing argument concerning the impact of this case upon the continued viability of the no-fault scheme in Michigan were improper and served to deny the plaintiff a fair trial. We answer that question in the affirmative.
MCL 500.3101 et seq.; MSA 24.13101 et seq.
I
On September 3, 1976, the plaintiff was a passenger in a car driven by defendant Laurie Sue Lougheed. The car was owned by defendant Wheels, Inc. There was a collision with another vehicle as a result of which the plaintiff suffered injuries including cerebral concussion, fractured pelvis, and multiple lacerations.
The plaintiff filed suit against the defendants claiming that she was entitled to damages inasmuch as she had suffered injuries resulting in disfigurement and serious impairment of bodily function. The jury returned a verdict in favor of the defendants.
MCL 500.3135; MSA 24.13135.
The plaintiff pursued an appeal to the Court of Appeals. The Court of Appeals affirmed in an unpublished per curiam opinion.
II
A major theme which was emphasized by defense counsel in his closing argument to the jury was his version of what the Legislature intended by the no-fault legislation and what, in his opinion, was necessary for the sustained viability of this system. The following excerpt from defense counsel's closing argument is illustrative:
"[I]n other words, just because somebody is at fault, they still have been hurt and they still may be out of work and they still may have medical bills to pay and I think the Legislature said, 'Hey, wait a minute, let's require everybody [to] have insurance and let's say all right regardless of fault, we're going to give, if somebody is injured, we're going to pay some benefits' and there are a lot of benefits and it provides no-fault, PI or personal injury benefits, reimbursement or all your medical expenses from now until you die, the rest of your life, rehabilitation if you need it, loss of services if you need that, wage reimbursement up to, I think it is, a thousand dollars a month for three years.
"I am almost sure that all of us who have automobiles have no-fault policy and if you read it and see all of the benefits, it provides, required by law and the Legislature says, 'All right, we're going to put that law into effect and we hope by this law to eliminate the problem we are having with all these lawsuits coming into courts and court congestion and tying up judges and juries and we are going to pay people regardless of fault.' We call it no-fault now. It doesn't make any difference about fault. We don't want to hear about fault. If you have been hurt, we're going to pay these benefits for you and we are going to solve our automobile accident injury problem, we hope, without getting into court system [sic] through this matter."
And further:
"You see, the no-fault law, the statute with its intended purpose to eliminate except for the serious injury is good idea, but it will only work if the jurors meet their responsibility. You might think that as you are sitting there, you might think this is just a little case up in Leelanau County, but what you do in this case will have a broad effect, because if you go into that jury room with these facts and you decide that this is a serious impairment of bodily function case, then I go back to my client and I tell him about the jury up in Leelanau County and what they did and I tell the lawyers about what happens and Mr. Clancey tells his people about what happens — ."
Plaintiff's attorney objected to defense counsel's remarks at this point and the trial court cautioned defense counsel. Nevertheless, defense counsel continued:
"I guess what I am saying to you is this, is that what you do in this case makes a great deal of difference as to how this no-fault statute is going to work, and I guess I don't want you to think that just because you are a jury in Leelanau County involving [sic] this case, that your decision may not be important to us lawyers and judges as to what juries do with cases of this kind and that is really the point I am trying to make."
On appeal, the plaintiff argued that defense counsel's remarks concerning the no-fault legislation and the duty of the jury were improper and constituted reversible error. The Court of Appeals rejected the plaintiff's arguments and took plaintiff to task for failing to cite any authority for this proposition, citing Mitcham v Detroit, 355 Mich. 182; 94 N.W.2d 388 (1959).
III
We conclude that the remarks set forth served to deny the plaintiff a fair trial. The issue for the jury's consideration in this case was not the continued viability of the no-fault legislation. The only issue for determination by the jury in this case was whether the plaintiff had suffered the type of injury for which noneconomic damages could be recovered. We cannot agree with the Court of Appeals that defense counsel's remarks were a simple admonition to the jury to follow the law. We believe that defense counsel's remarks may well have influenced the jury to decide this matter on the basis of considerations not germane to the issue which was presented to them.
Moreover, we do not believe that the plaintiff should be faulted for her failure to cite authority for her position in this regard. The nature of the plaintiff's argument on appeal was that the remarks made by defense counsel denied her a fair trial. We see no reason, given this type of argument, to preclude a finding of error because of the lack of cited authority.
Our disposition of this allegation of error makes it unnecessary to reach the other points raised by the plaintiff in her application for leave to appeal.
Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and of the Leelanau Circuit Court and remand the matter to the Leelanau Circuit Court for a new trial. Costs to plaintiff.
KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, and BLAIR MOODY, JR., JJ., concurred.
We agree with the majority's conclusion that the defense attorney's remarks concerning the possible impact that this jury's verdict might have upon the future of the no-fault scheme interjected irrelevant considerations into the trial and were improper. However, the remarks were not so prejudicial as to deny plaintiff a fair trial.
See Wayne County Board of Road Comm'rs v GLS LeasCo, 394 Mich. 126; 229 N.W.2d 797 (1975), Clark v Grand Trunk W R Co, 367 Mich. 396; 116 N.W.2d 914 (1962), University of Delaware v Munson, 316 A.2d 206 (Del, 1974), Russell v Guider, 362 So.2d 55 (Fla App, 1978), Hansel v Chicago Transit Authority, 132 Ill. App.2d 402; 270 N.E.2d 553 (1971), Williams v North River Ins Co, 579 S.W.2d 410 (Mo App, 1979).
The control of arguments of counsel is entrusted to the trial court's discretion and generally, counsel is given some leeway in presenting his argument. Although the argument that the jury should exercise its responsibility carefully because it may have broad ramifications in other cases was improper, the argument was not an appeal to the jury's self-interest, passion or prejudice.
See In re Dellow's Estate, 290 Mich. 167; 287 N.W. 420 (1939), Rutter v Collins, 103 Mich. 143; 61 N.W. 267 (1894); Bugar v Staiger, 66 Mich. App. 32; 238 N.W.2d 404 (1975).
See Elliott v A J Smith Contracting Co, 358 Mich. 398; 100 N.W.2d 257 (1960), Gonzalez v Hoffman, 9 Mich. App. 522; 157 N.W.2d 475 (1968).
See GLS LeasCo, supra, Clark, supra, Anno: Appeals to Juror's Self-Interest, 33 ALR2d 442.
After plaintiff's objection, the trial judge cautioned the defense attorney to "tone it down a little". No further request for relief in the form of a curative instruction or motion for a mistrial was made. Since an appropriate instruction to the jury to disregard these remarks could have been made if counsel had deemed them prejudicial, we conclude that reversal is not required in this case. The trial judge did not abuse his discretion in denying defendants' motion for a new trial.
See Munson, supra.
See Koepel v St Joseph Hospital, 381 Mich. 440; 163 N.W.2d 222 (1968), Russell, supra.
See Moore v Spangler, 401 Mich. 360; 258 N.W.2d 34 (1977), Kailimai v Firestone Tire Rubber Co, 398 Mich. 230; 247 N.W.2d 295 (1976).
RYAN, J., concurred with COLEMAN, C.J.