I am in accord with the reasoning of Mr. Justice Lawlor which leads to the conclusion that it is not probable that the conduct of counsel as complained of was so powerful in its effect as to overmaster the minds of the members of the jury and produce a result that would not have been produced but for the conduct assigned as prejudicial error. The main opinion seems to concede the question that there would have been an affirmance of the case but for the conduct as set out in the opinion. In the instant case there seems to be no justification for the course taken by respondent's attorney. Appellant was under no legal obligation to call the gripman to the witness-chair. The testimony of the gripman was equally available to both parties and by the failure or refusal of either to exercise the right of making him a witness no room was left for complaint or criticism by either party. The situation did not present a case of suppression of evidence. Where an attorney in the trial of a cause does not exercise his right to examine a certain person as a witness, which person is available to either party, on the theory that his adversary will necessarily be forced to call such witness and he will thereby gain such advantages as the rules of cross-examination afford, and thereafter finds himself disappointed by the failure of his adversary to call such witness, he will not be permitted to indulge in insinuations which may impugn the motives of his adversary who was acting fully within his legal right. Admitting improper conduct on the part of respondent's counsel I am not prepared to say that it worked a miscarriage of justice.
The alleged misconduct of counsel in the trial of causes is frequently before this court for review. The orderly conduct of causes is so completely under the control of the trial judge that it ought not to be, except upon rare occasions, necessary to bring that issue to the attention of this court. In other words, ordinarily, it is within the power of the trial court to completely neutralize, by prompt and vigorous action, the prejudicial effect which it was the intention of the transgressor to produce. The admonition of the trial court, if firmly and promptly made, will, as a rule, so effectually remove all evil effects as to leave little reason to make the conduct of counsel a serious problem here. This should be done in every instance. If in the judgment of the *Page 164 trial court, however, this was practically impossible of attainment, then, of course, a new trial should have been ordered. But the trial court did not so regard it. The facts of the instant case are such that the judgment of the superior court would have been sustainable under either view of the situation. For the reasons herein suggested I am of the view that the judgment may properly be affirmed.
Rehearing denied.
Lawlor, Acting C.J., and Seawell, J., dissented.