¶1(concurring with the result) .
¶2I concur with the prevailing opinion except I think the court erred in refusing to allow plaintiffs’ counsel to read from the transcript of the evidence. However, I doubt that such error was prejudicial and therefore concur with the result.
¶3The objection which the trial court sustained was that such reading “would be highly prejudicial,” that it is “a question of the jury remembering the evidence,” and that “it would unduly emphasize certain parts of the evidence.” It appears that the court sustained the objection on the theory that counsel could argue the testimony as he remembered it, but that the law forbids counsel to read the exact words of the testimony to the jury. Such a theory is obviously ridiculous. The only real point made in the objection is that such reading would unduly emphasize certain parts of the evidence. Counsel in his argument to the jury has a right to try to emphasize his theory of the case and the evidence which supports it. It would no more be undue emphasis for him to read an accurate statement of the testimony than it would for counsel to state his recollection thereof. True, such reading might be more impressive on the jury but only because they would be more impressed by an accurate statement of the testimony than they would be by a statement from memory of counsel’s version of such testimony. To hold that *432such is a valid reason for denying the right to read from a transcript is to place a premium on inaccuracy and invite incorrect findings of the fact.
¶4In the argument to this court respondent’s counsel does not try to justify the theory on which the ruling was based, but contends that it was within the sound discretion of the court to allow or deny the reading of such testimony. That is the position that the prevailing opinion takes of the matter. In some situations such a holding would be correct. Here the basis of such ruling was on an incorrect theory. Neither at the trial nor in the argument to this court has respondent’s counsel suggested any sound reason based on the facts of this case why the opposing counsel should have been curtailed in his argument to the jury. In the absence of a showing of some good reason counsel should have been allowed to argue his case in the manner which he saw fit. Where the court refuses to allow such privilege to counsel without any sound reason, but merely on the mistaken ground that the court has no right to allow such privilege, it is clearly an erroneous ruling which constitutes an abuse of the cpurt’s discretion.
¶5Apparently objecting counsel and the trial court both confused this situation with the case where'the jury,'after retiring to consider its verdict, requests the court to have read to them part of the testimony. Under such circumstances the reading of only one side of the testimony on an issue has been held to constitute undue emphasis. Such holding, even if correct, has no bearing on the problem here presented. In the supposed case the court allows, and in a sense sponsors, the reading of only one side of an issue with no opportunity by opposing counsel to call to the jury’s attention the contrary evidence. Here counsel was arguing to the jury; he has a right and duty, within the time alloted and without using unfair or misleading tactics, to emphasize as best he can his side of the case, and the opposing counsel was afforded full opportunity to point out the contrary point of view. What would be improper in the supposed case would have no bearing on what should be allowed in the situation here presented. Under our adversary system of litigation opposing counsel have a right to argue their case in the manner they think will best impress the justice of their claims on the jury. As long as they do so without misrepresentation or unfair or dilatory tactics, it is error for the trial court to direct how counsel may or may not proceed. Here a reading of the testimony would tend to create a more accurate impression on the minds of the jurors than would a mere recital from memory of that evidence. I therefore think the ruling was clearly erroneous.