SAUVE
v.
CARLING BREWING COMPANY, INC.
Calendar No. 23, Docket No. 50,010.
Supreme Court of Michigan.
Decided February 2, 1965.van Benschoten & van Benschoten (Duane S. van Benschoten, of counsel), for plaintiff.
Stanton, Taylor, McGraw & Collison (John W. McGraw, of counsel), for defendant.
PER CURIAM:
This case was tried in the Saginaw circuit during May, 1962, at a time when the jury panel was under investigation by an insurance company because of a large plaintiff's verdict in another case. A private detective hired by the insurance company and the company's local manager had been cited to show cause why they should not be held in contempt for jury tampering. All of this was given publicity in the Saginaw News, a newspaper of daily circulation allegedly read by 75% of the jury panel.
On the morning of trial, defendant moved for a continuance which was denied after jurors were examined on voir dire as to the subject of the jury investigation. The trial judge propounded several questions submitted by defendant. Four jurors admitted *489 having read the news account of the jury investigation. None had been questioned by the jury investigators. None felt that their verdict could be influenced by the knowledge that an investigation had occurred. It is possible that without more, the matter could have been tried with essential fairness to the parties but such repeated prejudice was injected into the trial thereafter that a new trial must be ordered.
The trial began with a highly argumentative opening statement by plaintiff's attorney in which it was charged that defendant had raised inconsistent defenses, a position which plaintiff's attorney sought to substantiate by reading from pleadings and depositions. While in and of itself not necessarily reversible, this performance merely set the stage, in the instant case, for the bitter histrionics which followed. In the course of trial there were veiled references to insurance investigators. Plaintiff's final argument was replete with references to the large, foreign corporate defendant pitted against plaintiff, a poor working man, and his family. It was suggested that the corporate defendant had spent large sums of money investigating the case but, despite the expensive investigation, the defendant was withholding evidence. Then plaintiff's attorney, warming to the occasion even more, made this accusation:
"That isn't a locally operated thing, somebody out there being responsible. This is a far-flung, wide strung out outfit and you can infer what you want as to who is pulling the strings and pushing the buttons around here but I'll tell you, it isn't all here in court." (Emphasis supplied.)
Further on in the argument, plaintiff's counsel made the following statements, in obvious reference to the jury investigation to which reference has already been made:
*490 "Yes, you have got a right to know who the plaintiff and the defendant is.
"I wished I knew who they all were, but I'll tell you this, I will make this statement to you: no matter where they're looking, if there's ten of them, there's twenty eyes right on you right now, to see how this little game is coming out.
"They're going to watch you and watch you and watch you, and when you come out with your verdict
"Mr. Stanton: Now, just a minute, if the Court please. I am going to object to this statement.
"As a matter of fact, I am going to be asked [sic] that this jury be discharged at this time
"Mr. van Benschoten: Your Honor, I am in the middle of my argument.
"Mr. Stanton: I know, but your argument is very improper." (Emphasis supplied.)
Omitting some others, we come to plaintiff's attorney's final swipe. Again in obvious reference to the jury investigation the following argument was given:
"There may be some way that you people in deliberating on this case might be afraid to do what is right to be done, and I'll say this again, if anybody comes around to check you as to why you decide a lawsuit in this circuit court, you tell his Honor, the judge, right up there, because that's against the law. They got no right to do it and they are criminals when they do it, and we just had a hearing right in this courtroom the other day about that."
Defendant's trial counsel was not reluctant to exploit the advantage which reference to the jury investigation gave him. He, too, reminded the jury of the suspicions which attended a jury from the same panel which brought in a substantial verdict. In addition, his rebuttal to the argument of the corporate defendant's bigness plainly stated that *491 plaintiff's attorney represented a bar association which preyed upon large corporations. In this atmosphere, a fair trial was impossible. The sum total of conduct was to deny both parties of a trial of the issues unmarred by an atmosphere of suspicion and prejudice. As we said in Benmark v. Steffen, 374 Mich. 155, a case tried in the Saginaw circuit at approximately the same time and which recently received the same fate as this case in this Court:
"Sadly though, those issues were prejudicially tried when both counsel, each bitterly accusing the other of repeated aggression as justification of his own aggression, succeeded together in depriving the two litigants of their constitutional right to a fair and impartial jury verdict. * * *
"Granting that the first of the two aggressors got the worse of it, the result nevertheless was that neither the plaintiff nor the defendant received or could have received that to which both were entitled upon the oath of a duly chosen jury, a fair and unprejudiced verdict rendered upon evidence devoted to the triable issues only."
As in Benmark, we reverse on account of prejudicial misconduct of both trial counsel before the jury. Instructions for immediate retrial are also the same. No costs incurred by appellant below or upon review here, may be taxed. Plaintiff may recover his costs on account of such mistrial only in event he recovers judgment upon new trial. Other motions are denied.
KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SOURIS, SMITH, O'HARA, and ADAMS, JJ., concurred.