I dissent.
First as to the merits of the assignment of misconduct:
It may be true, as counsel for respondent apparently assumed, that, for strategic purposes, appellant kept the gripman in attendance on the trial during the presentation of respondent's case in chief in order to convey the impression he would be called to testify for appellant, when there was in fact no such intention. But even if this were so, such tactics would not constitute a suppression of evidence under the rule (subds. 6 and 7, sec. 2061, Code Civ. Proc.). The gripman had primary knowledge of the accident and being an employee of appellant perhaps the failure to make him a witness might have been the proper subject of comment in the argument to the jury on behalf of respondent, but not upon the theory of a suppression of evidence. Now, the only testimony offered by appellant was that of the father of the child that there was an 18x18 yard back of the family residence, which testimony was apparently offered to show contributory negligence on the part of respondent in allowing the child to play on the street; and the testimony of appellant's claims agent that the extra-judicial statements of a witness for respondent were contradictory of her testimony. It is plain, therefore, that neither of these items of testimony involved the principle laid down in section 2061 of the Code of Civil Procedure, and it must therefore be conceded that repeatedly charging appellant with having suppressed evidence, in disregard of the adverse rulings on the question, constituted misconduct. *Page 161
This brings me to the further question whether under the constitutional provision such misconduct demands a reversal of the judgment.
Two juries have found that respondent is entitled to recover. Twice the trial court has held the evidence was sufficient to sustain the verdicts. The district court of appeal and the majority opinion herein have declared the evidence is sufficient as matter of law to support the judgment. Due to an erroneous hypothetical instruction which omitted the issue of contributory negligence the first judgment was reversed. So that neither in the trial court nor on appeal has it ever been held that respondent is not entitled to recover.
It seems to me the probabilities are opposed to the theory that appellant was prejudiced by the misconduct. Both the trial court and the district court of appeal have held that the jury was not influenced against appellant by the incident. It is evident that this court is not in as favorable a position as the trial court to satisfactorily appraise the effect of the misconduct. The prompt action of the trial judge to avoid any injurious result indicates that something more than a perfunctory consideration was given to the misconduct of counsel. What was said inLafargue v. United Railroads, 183 Cal. 720, 724 [192 P. 538, 540], is to my mind equally pertinent here: "In doing this the court must be deemed to have concluded that no prejudice was suffered by defendant by reason of any of the matters to which we have referred. Conceding some of the statements made by counsel, whatever the provocation thought by him to exist therefor, were improper, we are satisfied that this conclusion of the trial judge should not be disturbed by an appellate court. The trial judge is in a much better position than an appellate court to determine whether the verdict in a case is probably due wholly or in part to such alleged misconduct as we have here, and his conclusion in the matter should not be disturbed unless, under all the circumstances appearing, it is plainly wrong. This, we think, may not fairly be said here."
All presumptions are in favor of the regularity of the action of the court below. Prejudice is no longer presumed from error, but under the constitutional mandate the party complaining must assume the burden of satisfying the appellate *Page 162 court that to affirm the judgment would work a miscarriage of justice. This appellant has not done.
Formerly any departure from prescribed rules of evidence or procedure might be made the basis of a reversal, but now a miscarriage of justice must be established as a fact and in the process of determining the question the appellate court must examine the record and to some extent weigh the evidence and form conclusions upon its weight — a function heretofore reserved exclusively for the jury. It is not enough to argue that the jurymay have been influenced by the misconduct to the prejudice of appellant; the showing must be such that an inference of injury finds clear support in the record on appeal. At most, the question here is involved in pure speculation. In my opinion it is more likely that if the persistent misconduct of counsel in opposition to the repeated rulings of the court sustaining appellant's objections influenced the jury at all, respondent and not appellant suffered thereby. I cannot escape the conviction that to hold otherwise is to impugn the jury system itself, for such a conclusion necessarily involves an assumption that the jury ignored the rulings of the court, and accepted the ipsedixit of counsel, who misconceived the law or may have resorted to partisan or improper methods in the effort to win his case. The probability is that the action of counsel was reprehended by the jury, for the court admonished them to "pay no attention to the remarks of counsel, and they will not be considered by the jury for any purpose in this case. It is no evidence. Let the jury disregard the remarks of counsel on either side." In its charge the court likewise instructed the jury "to distinguish carefully between the facts testified to by the witnesses and the statements made by the attorneys in their arguments. . . ."
If my estimate of the actual effect of counsel's misconduct is well founded, then a case of genuine hardship is presented. Respondent has lost his child. The accident occurred on May 9, 1918, more than seven years ago. The purpose of the reversal is to discipline counsel and discourage improper conduct in the trial of cases; but, unhappily, the effect is to penalize an innocent litigant. This is the second reversal in the case and a third trial should be avoided. *Page 163