Mortensen v. Bradshaw

Brooke, C. J. (after stating the facts). There are some 46 assignments of error, only a few of which it will be necessary to consider. There are several assignments based upon alleged erroneous rulings with reference to the admission of testimony. We find no reversible error here. During the cross-examination of the plaintiff by defendant’s counsel, plaintiff’s counsel, in the presence of the jury, charged defendant’s counsel with pettifog [441] ging. An exception was taken to the statement by-defendant’s counsel, but no action of the court was invoked upon the matter. We are of opinion that the language of plaintiff’s counsel was unwarranted, and, had the trial court been appealed to, a timely instruction to the jury would doubtless have rendered the remark harmless. Defendant’s counsel, having failed to invoke such action on the part of the court at the time of the occurrence, is now without remedy. During the argument to the jury the following occurred : “In their argument, Counsel for defendant argued to the effect that plaintiff could not recover damages in any substantial amount, because she had already received the greatest injury that any woman could suffer, and had settled this for $400. Mr. Diekema, in his closing argument for the plaintiff, insisted that neither the jurors nor any parent would feel that their daughter was less entitled to damages by reason of having been overpersuaded by a young man to whom she was engaged, and that the position taken by counsel for the defendant was entirely unjust and contrary to the natural feeling of parent and child. The following then occurred: “Mr. Visscher: I except to that statement. “The Court: Think you had better leave that out. They should try this case according to the testimony received here. “Mr. Visscher: The question is not how their daughter would feel about it. “Mr. Diekema,: Do you expect to eliminate the heart of men and paternal feelings in a case of this kind? “The Court: No. “Mr. Visscher: We except to Mr. Diekema’s remark. “Later on, in the course of the same argument, Mr. Diekema, while discussing the question of damages, reviewed the testimony in detail relating to the possessions of the defendant, whereupon the following occurred : “Mr. Visscher: I object to that; the remarks about Mr. Bradshaw being a rich man. Take an exception to it. [442] “The Court: It is in the testimony; I suppose he has a right to argue from it.” We are of opinion that the argument of counsel for plaintiff constitutes reversible error under several late decisions of this court. Juries are not to be invited to assess damages upon the basis of the amount they would be willing to accept as compensation for the wrongs alleged to have been suffered. The case was one in which an appeal to the passions and prejudices of the jury was likely to produce unfortunate results. Upon this point see Hughes v. City of Detroit, 161 Mich. 283 (126 N. W. 214, 137 Am. St. Rep. 504) ; Morrison v. Carpenter, 179 Mich. 207 (146 N. W. 106), and Wells v. Railroad Co., 184 Mich. 1 (150 N. W. 340). We are likewise of opinion that the argument of counsel relative to the alleged wealth of defendant was an improper one to make in the case, where the charge is one of assault with intent to commit rape. Johnson v. Railway Co., 135 Mich. 353 (97 N. W. 760); Holmes v. Loud, 149 Mich. 410 (112 N. W. 1109). We have examined this record with care, and find no evidence warranting the trial court in permitting the jury to award damages to plaintiff on account of loss of reputation and standing in the community. Totten v. Totten, 172 Mich. 565 (138 N. W. 257). A motion for a new trial was made based, inter alia, upon the ground that the verdict was excessive. As the case must go down for a new trial, because of the errors pointed out, it is unnecessary to consider the question presented by this assignment of error. The judgment is reversed, and a new trial ordered. Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. The late Justice McAlvay took no part in this decision.