I think I am correct in saying that it has been the uniform practice of this court to refuse consideration of objections to statements and argument of counsel before a jury unless they are called to the attention of the trial court at the time, and the record and objection made, so that the matter could be correctly presented to this court on appeal. (State v. Keyser,38 Idaho 57, 60, 219 P. 775: State v. Frank, 51 Idaho 21, 27,1 P.2d 181; State v. Neil, 58 Idaho 359, 367,74 P.2d 586; State v. Miller, 60 Idaho 79, 82, 88 P.2d 526.)
So far as I am aware, the question has been presented only once in this court (Goldstone v. Rustemeyer, 21 Idaho 703,123 P. 635), by affidavit made on motion for new trial; and in that case it does not appear from the opinion that the question, as to the manner of presenting the issue, was raised or considered by the court. The reasons for requiring the matter to be raised and presented to the trial court are numerous and sound. A reporter is in attendance on the court and is usually in the courtroom; in the present case he was apparently present and part, at least, of the controversy was taken by him.
Where the objection is made at the time, it is much easier to make an accurate record of what was actually said and *Page 482 done than to defer it for weeks or months and then attempt to present it on ex parte affidavits. Furthermore, if a real prejudicial statement is made and objection is taken at the time, the court has an opportunity to correct the error, either by instructions to the jury, or, if of a sufficiently serious character, to declare a mistrial and impanel a new jury. The court may also, at the same time, deal with the offending counsel as for contempt of court. Statements made by opposing counsel in the heat of the trial or on argument to the jury sound much worse and appear of greater importance to opposing counsel than to almost anybody else; and if the matter is allowed to go without making a record of it, and offending counsel wins the case, the offense is likely to be greatly magnified in the mind of defeated counsel when he comes to make affidavit on motion for new trial; so that it is seldom possible to make a correct record after the trial is closed, as to what occurred on one of these verbal encounters.
The difficulty of the situation is illustrated by the affidavit of counsel in this case. Counsel does not attempt to make a verbatim and categorical statement of what occurred. On the contrary, the affidavit, after saying that affiant was duly sworn, recites:
"That he is one of the attorneys for the plaintiffs in the above entitled action, and that the attorneys for the defendant in this action were guilty of misconduct in the following particulars; That R.L. Albaugh, Esq., argued to the jury ineffect that they should," etc.
So it follows that the one who makes the affidavit, as to the misconduct, must necessarily state his own conclusions as to the "effect" of what was said. If the statement or conduct of counsel is of such a grave and serious nature as to prejudice the rights of his adversary, the adversary is aware of it at the time it occurs; and that is the time and there is the place for making the objection and settling the record as to whatactually occurred. I am satisfied that this court should not establish the practice of hearing such objections upon affidavit made after the close of the trial.
Now, taking up the occurrences and objections that actually appear in the record before us, I find nothing stated by Mr. Albaugh that could possibly have prejudiced a reasonable, *Page 483 ordinary jury against the plaintiff. In fact, most of the statements contained in the reporter's transcript, as made at the time of the trial, are statements and objections made by opposing counsel. The only statements the record shows as having been made by Mr. Albaugh are as follows:
"I want to develop the thought, your Honor, to this extent, that we haven't yet come to the point in this country where the tax payers of a county, a city, or any municipal corporation must carry people around on little pillows to prevent them from having an accident."
The statements made are obvious facts and while they had no particular bearing or application to the case under consideration, it is difficult to see just how or wherein they would prejudice a jury of sane, representative citizens.
As was well observed by the late Justice William A. Lee, inWatkins v. Mountain Home Co-op. Irr. Co., 33 Idaho 623, 638,197 P. 247:
"Something must be presumed for the intelligence and fairness of the jurymen, and that they will not ordinarily be influenced into rendering a verdict contrary to the instructions of the court and the evidence, by every idle or improper remark that may be made during the progress of a trial."
This observation was quoted with approval by Justice Budge inTowne v. Northwestern Mut. Life Ins. Co., 58 Idaho 83, at page 88, 70 P.2d 364.
We must assume that the jury was composed of men of average intelligence; and a man would have to be extremely obtuse not to know that demands against "counties, cities or other municipal corporations" must in the end be paid by the "taxpayers," so that it is difficult to discover just what is prejudicial about such a statement.
I fail to see how or wherein it was prejudicial to refer to counsel for appellant as "attorneys from Pocatello."
I may well add here and now that I still entertain the same views, in relation to the duties and obligations of attorneys in their conduct in the trial of cases and discussions before juries, that I expressed in my concurring opinion in McLean v.Hayden Creek Min. etc. Co., 25 Idaho 416, at p. 432,138 P. 331, The case at bar does not even approach the point of error disclosed in that case. I do not think prejudicial error *Page 484 is shown in this case in the matter of the conduct of counsel.
I concur in a reversal of the judgment but I do so on entirely different grounds from those on which the majority opinion is rested.
Petition for rehearing denied.