¶1On Rehearing.
¶21. In considering appellant’s claim that the jury were prejudiced by the remarks of plaintiff’s counsel as to the damages to which she would be entitled, Mr. Justice Ostrander, who wrote the opinion. said:
*154“No complaint is made of the charge of the court thereafter given. A party is more often harmed than aided when his counsel asserts a legal proposition which the court denies.”
¶3.It is claimed that' he overlooked the fact that error was alleged on the charge as given relative to the measure of damages. While it is true that error was so alleged, counsel then failed, and now fail, to point out any specific erronéous statement therein. As we read it, we think it fairly stated the matters which the jury should consider in assessing plaintiff’s damages. Bennett v. Beam, 42 Mich. 346.
¶42. In the opinion filed it was said:
“It was error for the court to refuse to counsel for the appellant the right to comment in his argument upon certain alleged contradictions in the testimony given upon the former and upon this trial.”
¶5The conclusion was reached after examining the testimony, and especially the alleged contradictory statements of witnesses, that—
“It is wholly improbable that the limitation of the argument affected in any way the result.”
¶6The argument to the jury should be based on the testimony submitted at the trial. Counsel had the right during such trial to interrogate witnesses as to the testimony given by them on the former trial, either from a transcript of such testimony, or from notes taken by him, or from his personal recollection of what they then testified to. If the witnesses admitted the giving of such testimony and it is contradictory, counsel may comment on it in his argument to the jury. He need not produce a transcript of the testimony taken while the trial is in progress to entitle him to do so. He may submit to the jury his recollection of the questions asked and answers given, and he should not be prevented from doing so, unless, on *155objection, the trial judge is convinced that counsel is mistaken in his statement of such testimony.
¶7The alleged erroneous ruling occurred during the argument of defendant’s counsel to the jury. We quote from the record:
“Mr. McHugh: Now in the first trial the same witness was questioned upon that subject and this is what she said: ‘Q. I went there’ — that is on direct examination now by her own counsel, she was not being cross-examined, she was not annoyed or heckled by opposing counsel, but was being questioned in a nice, kind way by her own mother’s attorney and this is what she says, page 85:
“The Court: Is that in the record in this case?
“Mr. McHugh: Yes, your honor, it was called to the witness’ attention and read to her.”
¶8On objection, and after some discussion, counsel assured the court that “these identical questions were asked of the witness when she was on the witness stand.” Whereupon the court ruled that he might proceed.
¶9We have examined the printed record with care and cannot find that any such question as counsel was seeking to read to the jury appears therein.
¶10Later in counsel’s argument, the record shows:
“Mr. McHugh: First we find that Mrs. Gagush testified that she put the children to bed on the 13th of July; you will remember she claimed that Mr. Hoeft came to her home and that she left him and went in and put the children to bed, and upon that subject she was questioned along these lines: ‘Q. When did they go to bed? A. Half-past nine.’”
¶11Upon objection being made, defendant’s counsel said: “I submit, your honor, it was called to the witness’s attention.” The court expressed a clear recollection that no such question was put to the witness on the trial and ruled that counsel could not read from the transcript of the former trial.
¶12*156A careful examination of the record shows that the court was right and counsel mistaken. Unless much care be exercised in marking the passages in the transcript of the testimony given on a former trial, counsel may mark parts thereof which he intends to ask the witness concerning but fails to do so. This, apparently, is what occurred. But he cannot now complain of not having been permitted to comment on contradictory statements which do not appear in the present, record.
¶13In defendant’s brief now filed, several pages consist, of parallel columns claimed to be statements made by plaintiff and several other witnesses on the present trial contradictory to those given on the former trial. For the purpose of the comparison, the record of the former trial and in one case the stenographer’s minutes are quoted from. We can only consider the errors which appear on the printed record before us. From, it we reach the conclusion that no prejudicial error was committed by the trial court in the rulings complained of.
¶148. Defendant’s counsel insist that this court overlooked his claim of error in the trial judge using the word “rebuke” when commenting on the contradictory nature of the testimony and that the jury were influenced thereby in their allowance of damages to plaintiff. It is, perhaps, sufficient to say that this alleged error was not in any way alluded to in the brief filed by defendant, but, in view of the fact that the verdict at the last trial was less than that rendered at the former trial, it seems apparent that no prejudice was created thereby.
¶15The judgment must stand affirmed, with costs to plaintiff.