I regret I cannot agree to the disposition of this case as made by my associates. This litigation has been in the courts since 1919, and, as shown by the record there have been six trials on the facts. This is the third appeal from a trial on the facts. On the first appeal the cause was reversed because of the insufficiency of the testimony to support the verdict. Payne v. Hill (Tex.Civ.App.) 242 S.W. 302. On the second appeal the cause was reversed because of the improper argument of counsel. Davis v. Hill (Tex.Civ.App.) 272 S.W. 291. The testimony introduced on the last trial is practically the same as that on the last appeal; a large portion thereof being read from the testimony as given in the former trial.
Appellant, by timely objection and proper exceptions, presents in this court error based on the argument of counsel for appellee, which in my opinion should be sustained. Appellee's counsel in the opening argument stated to the jury:
"It looks to me, gentlemen, and I am warranted in saying it, that that man's (Ferguson's) testimony was made out of whole cloth from start to finish. If that is true, gentlemen, there has been an influence working in this case that was not proper."
Said statement was objected to on the ground that it was improper and prejudicial, and not supported by the evidence. Counsel for appellee further in his opening argument stated:
"Now, let's see some of the things that this witness Ferguson says. He, it seems like — I don't know who is responsible for it, but it just seems like somebody connected with the railroad company were not willing to let him attend, so that that fellow could testify in this case this time in person, and they depended on his deposition."
Said argument was excepted to because of being prejudicial and not supported by the testimony, and because it was highly inflammatory. Counsel for appellee again in his opening argument stated to the jury:
"Not only that, gentlemen, with the ingenuity and the energy that it looks like the railroad company has exercised to get witnesses here in this case, doesn't it seem strange, gentlemen, that an important witness like this man (Ferguson) couldn't have gotten here for this trial even?" *Page 690
This argument was objected to because it was highly inflammatory and not supported by the facts. Counsel for appellee then stated:
"I will ask the court to instruct the jury not to consider that last statement. I don't want to get out of the record."
Again in his closing argument counsel for appellee stated:
"It seems like they (the agents for the railway company) were able to bring witnesses here by the clouds, many of them, almost any kind of a witness they wanted, in order to establish any kind of a fact they wanted to establish."
Counsel for appellant objected to that line of argument, and, after some argument with the court in which the trial court stated there was no evidence about the financial ability of the parties, counsel for appellee stated:
"If the court feels like that is not in the record, then I will ask the court to instruct the jury to disregard it,"
— and the court instructed the jury not to consider that argument on the part of counsel.
I think the above argument of counsel is as harmful as that for which the cause was reversed by this court on the former appeal, and in which opinion the court correctly stated:
"In this case the question of liability was very close. The evidence to show liability was rather unsatisfactory, and, while we cannot say that the verdict of the jury is against the manifest weight and the great preponderance of the evidence, or that said verdict is clearly wrong, yet the verdict seems to be against the preponderance of the evidence, and in such instances special care should be taken by the trial court and by counsel in their argument to leave the jury, free, and untrammelled from any possible influence of improper argument, to decide the case only upon matters proper for their consideration." Davis v. Hill (Tex.Civ.App.)272 S.W. 291.
The record shows that the witness Ferguson was a very important one for appellant. His wife, Mrs. Ferguson, testified on the stand that Mr. Ferguson was a truck driver at Cleburne, and was operating several trucks, and that he did hauling for the railway company at times; that, while the trial of this case was in progress, he (Mr. Ferguson) was not working for the appellant railway company, but was operating three trucks, and using a number of men, and that for said reason he could not attend in person on the trial of the case. I do not agree with the statement of fact in the majority opinion that at the time of the trial Mr. Ferguson was working for appellant. Mrs. Ferguson testified positively that at the time of trial he was not working for the appellant, and no effort was made to contradict her testimony. There is no power lodged in a trial court or in litigants to force a witness from one county to another to testify. The only method by which the testimony of witnesses who live without the limits of the county can be obtained is by deposition, or by the witnesses voluntarily coming into court. For counsel in his argument to attempt to obtain a verdict from the jury by stating to them that Ferguson's testimony, according to his opinion, was "made out of whole cloth from start to finish," and that, if his opinion was correct, "there had been an influence working in the case that was not proper," and, further, that "it seems to me like somebody connected with the railway company was not willing to let Ferguson come into court and testify, but depended on his depositions," and, further, that "the plaintiff (appellee) was not financially able to bring witnesses to court, but that it seems like they (appellant) were able to bring witnesses here by the clouds, many of them, almost any kind of a witness they wanted, in order to establish any kind of a fact they wanted to establish," is most highly prejudicial, and unwarranted by any facts in the record, and I do not think counsel can remove the harm by making improper argument, and then, as in this case, asking the court to instruct the jury not to consider same. He cannot stab and remove the dagger without a wound being left. There is nothing in the record to indicate that the railway company had used any undue influence on the witness Ferguson. The depositions that were introduced had been on file since prior to the former trial of the case. The question of the financial ability of the respective litigants should not have been in any way commented upon. As said in the former opinion, I think counsel should be careful in the argument they use, so that the jury might be left untrammelled to decide the issues upon the facts in the record. I think the argument complained of here comes within the rule announced by the court in St. L. S.W. R. Co. v. Brazelton, 290 S.W. 825, this day decided by this court.
Appellant assigns error to the action of the trial court in permitting appellee Mrs. Hill to testify that her husband was earning about $5 a day, and that she knew said fact, because she saw his pay check and money, over its objection that said testimony was hearsay. Appellant further assigns error to the action of the trial court in refusing to exclude the above testimony of Mrs. Hill, after it had developed on cross-examination of Mrs. Hill, that the only pay check of Mr. Hill that she saw, and the only information she had about what he was earning, was with reference to a check which he showed her and what he told her he was earning *Page 691 at Akron, Ohio, at least 16 months before she married Hill, and prior to the time he entered the army. The record shows Hill was in the army 13 months, and was discharged about April or May before he was killed in August, and that, since he returned from the army, he had worked for the Wells-Fargo Company at Temple, and had worked in the harvest fields in Kansas. Mrs. Hill testified she did not know the wages he received from either of said last two employers, and that she did not know whether while working at Akron, Ohio, he was paid by the day, week, or month, but that she thought it was by the week, and she thought his check amounted to about $5 a day. After said testimony had been developed on cross-examination, appellant moved to strike out all of appellee's testimony with reference to her husband's earning capacity, because same was hearsay, and because what he was earning 18 months before his death in Akron, Ohio, would not be evidence as to what he was earning at the time of his death. The court overruled said motion. I think the court erred in refusing to strike said testimony from the record. Appellee's testimony was the only testimony offered as to the earning capacity of the deceased, and the court instructed the jury that, in arriving at the amount of damages, they would allow appellee, "they might take into consideration Mr. Hill's probable earnings from his death until the time of the trial and his future earnings, and such pecuniary benefit that they might find Mrs. Hill would have received therefrom."
If said testimony had been excluded, there would have been no evidence before the jury which would have authorized said charge to be given, or which would support a verdict based on the earning capacity of the deceased. Panhandle, etc., R. Co. v. Reed (Tex.Civ.App.) 273 S.W. 616; Western Oil Fields Corp. v. Nowlin (Tex.Civ.App.) 288 S.W. 554.
Appellant assigns error to the action of the court in permitting the court reporter, Mr. McAtee, to testify that he had examined all of the testimony as shown by his shorthand notes on the former trials, and that on none of said trials had Mrs. Ferguson testified to seeing any marks on the ground between the rails under one of the cars on the city spur track near where Hill was lying. Appellant objected to said testimony, because it was immaterial and irrelevant, and because no proper predicate had been laid for impeachment of the witness. I think this assignment should be sustained. There had been no proper predicate laid to impeach Mrs. Ferguson. I do not agree with the finding of fact in the majority opinion which states that "the record discloses that appellee's counsel had asked Mrs. Ferguson if it was not a fact she had not testified to such (material) fact in any of the former trials, and that the witness (Mrs. Ferguson) affirmed she had testified to said fact on each of said trials." The only question counsel for appellee claim to have asked her with reference to this matter as a basis for the testimony of Mr. McAtee for impeaching purposes, as shown by the bill of exception copied at length in the record, was:
"On the last trial of this case, Mrs. Ferguson, after you had gotten on the stand and testified to seeing those marks under that car between the rails, didn't I ask you the question: `Is it not a fact that is the first time that you have testified to that fact?'"
The record shows Mrs. Ferguson in reply to the above question stated:
"I think I testified every time that it showed in the tracks where he was laying, or something similar to that, the best I can remember."
It appears from the above question that the witness was only asked to answer whether or not she had been asked a certain question. This was wholly immaterial, and our courts have uniformly held that a witness cannot be impeached on an immaterial issue. Tex. P. R. Co. v. Phillips, 91 Tex. 278, 42 S.W. 852; Beaumont S. L W. R. Co. v. Manning (Tex.Civ.App.) 186 S.W. 387. Appellee did not ask that the answer be stricken out because not responsive to the question, and did not ask any further question as a predicate for impeachment of the witness. There was considerable argument pro and con by counsel for appellee and appellant before the court and jury with reference to the testimony being admissible, and counsel for appellee repeatedly told the court that he had laid the proper predicate for the testimony to be admitted for impeachment purposes, and that he was offering same alone for said purpose, and in the presence of the jury repeatedly stated that it was highly important testimony for said purpose. The court qualified the bill of exception by stating that the testimony was admitted because the court thought the proper predicate for impeachment had been laid, and that said was admitted only for said purpose. I think the court was in error in holding that a proper predicate for impeachment had been Laid, and in admitting the testimony for said purpose, and I think the same should have been excluded.
In my opinion, the judgment of the trial court should be reversed and the cause remanded. *Page 692