Connolly v. Nicollet Hotel

Thomas Gallagher, Justice (dissenting). I am of the opinion that under the ruling of this court in Ellerman v. Skelly Oil Co. 227 Minn. 65 , 34 N. W. (2d) 251 , 5 A. L. R. (2d) 886, a new trial should be granted because of statements made by counsel for plaintiff in his argument to the jury. Statements which I believe compel this result are as follows: “* * * What did they [Nicollet Hotel] do to protect her [plaintiff]? * * * What would the four firemen have said? * * * members of the jury, you have a right to say to yourself if those people would have been helpful to the cause of this hotel it would be reasonable to assume they would have been brought here as witnesses to tell you what they knew; on the other hand, if they knew something that would be harmful to the hotel, that’s quite a decent explanation for them failing to be decent in the sense of their own personal interests, but it’s not decent in the sense of my client’s interest. She is entitled to know the full story. “I am rather amused at the defendant, who would not bring any witness to Court, not one of these people that they said were guarding that hotel. Incidentally, there were four of them that were firemen, there for firefighting purposes and watching for fire. That’s the only reason they were there. The other two, as I understood the testimony, they were there to watch the displays of the Jaycees.” *422 The record discloses that the names of the four firemen as well as those two police officers, together with information as to how they could be located, had been furnished plaintiff’s counsel at the commencement of trial; that prior to trial it had also been disclosed to him that these men were no longer in defendants’ employment; and finally that they had not been eyewitnesses to the accident. At the close of the argument, defendants’ counsel objected to the above statements by plaintiff’s counsel as follows: “Mr. Egan [defendants’ counsel]: If the Court please, the defendant, Nicollet Hotel * * * moves the Court for a corrective and cautionary instruction on the following parts of Mr. Mumane’s closing argument with reference— “The Court: What is that? “Mr. Egan: With reference to his statement that the defendant did not call any witnesses to show what they knew or did not know about this accident, did not offer one word of evidence, and said, ‘We will produce nothing,’ on the ground that it’s not incumbent upon the defendant to produce evidence in this case, or call witnesses if there is no showing that there are now witnesses still in the employ of the defendant who have any knowledge of this accident or the circumstances surrounding it. “The Court: Well, I will cover some of it; some of it, if I don’t cover it, of course, it will remain. You may take exception to it.” In the charge to the jury no reference was made by the court to the remarks of plaintiff’s counsel to which defendants’ counsel had taken exception. The latter thereupon excepted further to the charge as follows: “We also except to the Court’s failure to instruct the jury that it was not incumbent upon the defendant to produce witnesses from the hotel, and that no inference or presumption against the defendant arises by reason thereof, and that such testimony as stated by plaintiff’s counsel would be unfavorable, that is that there is no inference or presumption that these witnesses, if called, would testify unfavorably. That’s all.” *423 This court has stated that, where an employee who could give important testimony relative to issues in litigation in which his employer is a party is not present as a witness and his absence is unaccounted for, opposing counsel may comment to the jury upon the absence of such witness, and make reference to the presumption that then arises that the testimony of such employee would have been unfavorable to his employer. Fonda v. St. Paul City Ry. Co. 71 Minn. 438 , 74 N. W. 166 ; Schultz v. Swift & Co. 210 Minn. 533 , 299 N. W. 7 . However, this rule has no application where the absent witness is no longer in the employ of the party to the action and where the burden of proof rests upon the opposing litigant. Where such circumstances are present, no obligation rests upon the employer to present his former employee as a witness and his failure to do so does not create a presumption that the testimony of the latter would have been unfavorable to the former. Ellerman v. Skelly Oil Co. supra; Naughton Co. v. American Horse Exch. 49 Misc. 227 , 97 N. Y. S. 387; Tuthill v. Belt Ry. Co. 145 Ill. App. 50 . In the Ellerman case this court quoted with approval from the Naughton case ( 227 Minn. 71 , 34 N. W. [2d] 254): “* * * No greater obligation rests upon the defendant to produce him than rests upon plaintiff, if, indeed, there is as much. It appears that he is not now in defendant’s employ, or under its control and direction; and, therefore, no presumption unfavorable to defendant is to be attributed to its failure to call him, * * Applying this principle here compels the conclusion that it was prejudicial for plaintiff’s counsel to argue that defendants’ failure to produce certain described witnesses no longer in defendants’ employment whose testimony, if it were deemed material, was available to plaintiff was because defendants knew that the testimony of such witnesses would have been unfavorable to them. Defendants’ counsel took proper exception to this line of argument and requested the court for corrective and cautionary instructions with reference thereto. When the court failed to do this, defendants’ counsel took further exception and pointed out specifically that “it was not incumbent upon the defendant to produce witnesses from the hotel, and that no inference or presumption against the defendants arises by reason thereof, * * *424 It may well be that this prejudicial argument of plaintiff’s counsel was a factor which influenced the jury to return a verdict in plaintiff’s favor. Plaintiff, however, contends that if the remarks indicated were prejudicial they nevertheless were provoked or invited by improper comments of defendants’ counsel in his argument, and being in response thereto should not be regarded as ground for reversal, citing Hinman v. Gould, 205 Minn. 377 , 286 N. W. 364 ; 39 Am. Jur., New Trial, § 61. In support of this contention, the following argument of defendants’ counsel is relied upon, to wit: “The most important thing in this case for you people to remember, it seems to me, is that after trying it for five days, we still do not know the source of the substance which struck this lady’s eye. Skilled attorneys have prepared this case, have availed themselves of the method of investigation and pre-trial procedures referred to here, interrogatories to the other parties, depositions of witnesses, and after the case is all over we still don’t know where the substance came from that caused this lady to sustain this injury. If we don’t know now, and if after all of this work no one can tell us, how could the hotel at the time be asked to take steps to prevent the occurrence of this accident? To me it doesn’t sound reasonable. If it can’t be explained now, what could we have done at the time to prevent it?” I find nothing in the argument referred to which is not supported by the record. There was no direct testimony as to the substance which struck plaintiff’s eye. Substantial investigative and pretrial procedures were engaged in by both sides before trial. Interrogatories were submitted to parties, and depositions taken. Notwithstanding this, no one was able to testify as to the exact substance which struck plaintiff or as to exactly where it came from. Accordingly, it was proper for defendants’ counsel to refer to these factors. In so doing, he was carrying out his obligation in defense of his client. The burden of establishing liability rested upon plaintiff, and defendants’ remarks directed attention to the failure of proof in certain aspects of the case. This cannot be said to constitute sufficient provocation or justification for plaintiff to then argue that certain witnesses who were no longer in defend *425 ants’ employ would have testified adversely to defendants if they had been called, particularly where plaintiff knew that the witnesses described knew nothing of the accident and might have been called by plaintiff if she desired their testimony. Ellerman v. Skelly Oil Co. 227 Minn. 65 , 34 N. W. (2d) 251 . Mr. Justice Loevinger, not having been a member of the court at the time of the argument and submission, took no part in the consideration or decision of this case.