On Appellee's Motion for Rehearing. Counsel for appellee have cited numerous decisions to show that the decision of our Supreme Court in Willis Bros. v. McNeill,57 Tex. 465, cited in our former opinion, to the effect that advantage may be taken of improper argument to the jury in the absence of any objection thereto at the time it was made, has been qualified by later decisions. The leading case cited and relied on is Moore v. Moore,73 Tex. 394, 11 S.W. 396, in an opinion by Judge Hobby, of the Commission of Appeals, approved by the Supreme Court, in which the following was said:
"When counsel in argument go beyond a discussion of the issues arising out of the pleadings and evidence exceptions should be taken at once. It is only where remarks of counsel are reprehensible, not provoked by the other side and in answer thereto, called to the attention of the court and not by the court checked, and some probability existing that the verdict was influenced thereby, that they will be ground for reversal. * * * It is peculiarly the office of an objection or exception of this character that it shall be made at the time of the act complained of, in order that the evil may be promptly remedied, and which it is to be presumed would be unhesitatingly done. But to allow without objection the continuation of such a line of argument would in some cases enable a party to take the chance of a favorable verdict, and which if adverse to him could be set aside upon objections which if promptly made would have resulted in a correction by the court."
But in that case it was further pointed out that the argument objected to had been provoked by counsel of opposing party, and that there was nothing in the record which tended to show that the verdict of the jury was influenced by the improper argument.
Another decision is Moore v. Rogers, 84 Tex. 2, 19 S.W. 283, by Judge Fisher of the Commission of Appeals, approved by the Supreme Court. In that case, in discussing an assignment predicated upon improper argument, the court said:
"We do not feel called upon to consider this question as presented, because the question here urged was not raised in the court below. No exception was made to the language of counsel, and the attention of the court was not called thereto; but we do not see how any prejudicial effect could have resulted from the use of this language. The facts commented upon in the argument are reasonable deductions to be drawn from the evidence."
Other decisions cited by appellee, in which assignments of error to improper arguments were overruled, are American Freehold Land Mortgage Co. of London v. Brown, 54 Tex. Civ. App. 448, 118 S.W. 1106, by the Court of Civil Appeals at Austin; Davis v. Kennedy, 245 S.W. 259, by the Court of Civil Appeals at Amarillo; Uvalde Co. v. O'Brien, 265 S.W. 1083, by the San Antonio Court of Civil Appeals; G., H. S. A. Ry. Co. v. Henry. 252 S.W. 213, by the Galveston Court of Civil Appeals; H. T. C. Ry. Co. v. Alexander, 121 S.W. 602, by the Dallas Court of Civil Appeals; Fordtran v. Stowers, 52 Tex. Civ. App. 226, 113 S.W. 631; S. A. U. G. Ry. Co. v. Storey, 172 S.W. 188, and Jones v. Wright, 92 S.W. 1010, by the San Antonio Court of Civil Appeals; Debes v. Greenstone, 260 S.W. 211, by the Beaumont Court of Civil Appeals; Employers' Ins. Assn. v. Herring, by this court, 269 S.W. 249, in which the following was said:
"But, even if this argument was objectionable, which question we do not decide, we think that the objection, being to the argument as a whole, and portions of the argument being in our opinion justified by the testimony in the record, and the objection made to the court, as shown by his modification to the bill of exceptions, failing to call the trial court's attention to what part of the argument objection was made, we conclude that no reversible error is shown."
In reply to those decisions, appellant has cited numerous other decisions to the effect that, where the objectionable argument is clearly and highly prejudicial, the judgment will be reversed, in the absence of any objection made to the argument at the time. One of the cases cited is G., C. S. F. Ry Co. v. Greenlee, 70 Tex. 553, 8 S.W. 129, by Justice Gaines, speaking for the Supreme Court, in which the following was said:
"An exception was taken to the language of one of the counsel for plaintiffs, used in the closing argument to the jury. The language was not objected to when uttered, and the judge states, in the bill of exception that his attention was engrossed at the time in the preparation of his charge, and that he only heard one of the remarks of which complaint is made, and that this he promptly checked. Without passing upon the question whether the language is of such a character as would require a reversal under any circumstances, *Page 998 we will say that the remarks were not so plainly prejudicial to defendant as to demand that the verdict be set aside, in the absence of an objection by its counsel at the time the words were spoken."
Other cases cited by appellant include Vogt v. Guidry (Tex.Civ.App.)229 S.W. 656, in which a judgment was reversed for improper argument, even though no objection was offered thereto when it was made; the court using the following language:
"It is the general rule that advantage cannot be taken in an appellate court of improper argument before a jury, unless objection be presented at the time the argument is made, and there are numerous Texas cases sustaining the rule. However, there are exceptions to the rule, and where the argument is intensely vituperative, and is based on matters not in evidence, and which necessarily must have caused prejudice and probably thwarted justice, it becomes the duty of the trial judge to set aside the verdict of the jury, even though no objections were urged to the argument when made. Willis v. McNeill, 57 Tex. 465; Railway v. Jarrell, 60 Tex. 267; Willis v. Lowry, 66 Tex. 540, 2 S.W. 449; Railway v. Greenlee, 70 Tex. 553,8 S.W. 129; Prather v. McClelland [Tex. Civ. App.] 26 S.W. 657; Railway v. Rehm, 36 Tex. Civ. App. 553, 82 S.W. 526; Railway v. Washington,42 Tex. Civ. App. 380, 92 S.W. 1054; Alamo Iron Works v. Prado [Tex. Civ. App.] 220 S.W. 283."
A like ruling was made by the same court in the case of Alamo Iron Works v. Prado, 220 S.W. 283, also in the case of Prather v. McClelland, 26 S.W. 657, by the Austin Court of Civil Appeals.
In H. T. C. Ry. Co. v. Rehm, 36 Tex. Civ. App. 553, 82 S.W. 526, by the Galveston Court of Civil Appeals, the following was said:
"It seems to have been generally held that, where the language complained of is improper only because not strictly confined to the evidence, it must be excepted to at the time it was used, otherwise it will not be a ground for setting aside the verdict; but we think it well settled that when counsel in their address to the jury intentionally go outside of the record and indulge in remarks that are clearly prejudicial to the rights of the opposing side, and must have been made for the purpose of influencing the jury, such conduct not only authorizes, but requires, the trial court to set aside the verdict of the jury, notwithstanding the remarks were not objected to at the time they were made. We think the remarks of counsel set out in the assignment are of the character referred to by Judge Gaines in Railway Company v. Greenlee, 70 Tex. 553, 8 S.W. 129, as being `so plainly prejudicial to defendant as to demand that the verdict be set aside.' * * * The prejudicial effect of these remarks is reflected in the size of the verdict rendered, which we think is much larger than the facts warrant. If this were the only effect produced by the violation by appellee's counsel of the rule requiring the argument to be confined to the evidence, we might remedy the wrong by requiring a remitter, but, as before stated, the evidence is not conclusive upon either the issue of negligence on the part of appellant nor that of contributory negligence, and we cannot say that these improper remarks did not influence the jury in the determination of these issues. * * * The judgment * * * is therefore reversed, and the cause remanded."
In M., K T. Ry. Co. v. Thomas, 63 Tex. Civ. App. 312, 132 S.W. 974, the Court of Civil Appeals at Austin reversed the judgment by reason of testimony brought out by plaintiff's counsel that he was a married man and had children, although an objection urged to the testimony was sustained by the trial court, and the jury were instructed not to consider it.
In Dillingham v. Scales, 78 Tex. 205, 14 S.W. 566, the Supreme Court said:
"The verdict is larger than we can account for upon any view of the evidence. The remarks of counsel excepted to were not justified or called for by anything legitimately belonging to the case. We cannot say that they did not improperly prejudice the jury. We cannot say that they exercised no influence on, the jury. If they exercised any it was an improper one. The fact that we have no means, and that the jury have none, of arriving at the exact amount of damages in such cases emphasizes the importance of guarding the minds of the jury from all misleading and improper influences and appeals."
To the same effect are Railway Co. v. Gordon. 70 Tex. 80, 7 S.W. 695; and H. T. C. Ry. Co. v. Rehm, 36 Tex. Civ. App. 553, 82 S.W. 526.
In Sinclair v. Stanley, 69 Tex. 727, 7 S.W. 517, the following is said:
"As said by this court in Railway Company v. Irvine, 64 Tex. 535, the use of improper language by counsel, within itself, furnishes no sufficient reason for reversing a judgment; and it is only in cases in which the preponderance of the evidence seems to be against the verdict or in cases in which the verdict seems excessive and there is reason to believe that the verdict may have been affected by such course of conduct, that it becomes ground for reversal."
In Mo. Pac. Ry. Co. v. Mitchell, 72 Tex. 171, 10 S.W. 411, it was said:
"If it should appear that during a trial questions were propounded to witnesses apparently to establish things that did not exist, and to which it was known the witnesses could not testify, or apparently to prove such things in a mode in which they could not be proved, with a view to make a false impression on the jury, then such conduct would be reprehensible, and in such case, if looking to the entire record there was reason to believe the jury had been influenced by such course, this would furnish ground for reversal." *Page 999
That language was quoted with approval by our Supreme Court in Clegg v. Gulf, C. S. F. Ry. Co., 104 Tex. 280, 137 S.W. 109.
In Houston Car Wheel Machine Co. v. Smith, 160 S.W. 435, the San Antonio Court of Civil Appeals reversed a judgment because plaintiff's attorney, in questioning the jury panel on their voir dire, intimated that the defendant company might have indemnity insurance against accidents such as the one involved in the suit.
In Strawn Coal Co. v. Trojan (Tex.Civ.App.) 195 S.W. 256, the following was said:
"That the argument made to the jury as above indicated was improper is obvious. Equally so was the repetition of the objectionable questions. The latter conduct was simply an effort to place before the jury evidence highly objectionable and prejudicial. It indirectly had that effect. We are loath to reverse cases on account of improper argument and objectionable conduct in the examination of witnesses, realizing that in the argument and development of evidence counsel will often by inadvertence stray from the strict rules. But where the conclusion is irresistible that it has been deliberately done with the manifest purpose of obtaining an unfair and improper advantage, and such conduct is reasonably calculated to effect its purpose, we do not hesitate to reverse therefor. This case falls within that category. This objectionable argument and conduct was aggravated and intensified by other argument of plaintiff's counsel complained of in the seventeenth, eighteenth, and nineteenth assignments, which was likewise improper. The assignments mentioned are all sustained. Galv. Elec. Co. v. Dickey,56 Tex. Civ. App. 490, 120 S.W. 1134; Rotan v. Maedgen,24 Tex. Civ. App. 558, 59 S.W. 587; C., R. I. T. Ry. v. Langston,19 Tex. Civ. App. 568, 47 S.W. 1027, 48 S.W. 613; and cases cited; Ft. Worth, etc., Ry. v. Hays, 51 Tex. Civ. App. 114, 111 S.W. 446."
In Levinski v. Cooper (Tex.Civ.App.) 142 S.W. 959, an assignment of error was sustained to the propounding of a question to the defendant, who was sued for damages on account of the death of plaintiff's son, who was drowned in a swimming pool maintained by the defendant. The question was:
"Is'nt it a fact that you were so convinced that it was a dangerous place that you induced an indemnity company to make a bond for you?"
An objection to the question was sustained by the court, who thereupon instructed the jury that the question was not proper evidence, and that they must not consider it or allow it to have any influence upon them in returning a verdict. In the opinion in that case, the court cited many decisions in which it was held that the mere asking of an improper question was reversible error, and concluded the discussion with the following:
"The question in this case of liability vel non, under the facts, was a closely contested issue; and it seems to us that the asking of this question, under the circumstances, was highly prejudicial to the rights of appellant, and may have, and likely did, influence the jury in returning their verdict. We therefore sustain the assignment presenting this question."
Acola v. Magnolia Petroleum Co. (Tex.Civ.App.) 261 S.W. 384, was an action for damages to plaintiff's automobile from collision with one owned by defendant, and the judgment of the trial court was reversed by reason of questions propounded to one of defendant's witnesses as to whether or not the defendant's car was insured, and which the witness answered he did not know. Several decisions were cited in the opinion in support of that ruling, the court saying:
"Such questions have been repeatedly denounced by our appellate courts. It is no longer an open question, and counsel who dare to ask such questions and secure a verdict must suffer the consequences of their infraction."
In Tarbutton v. Ambriz (Tex.Civ.App.) 259 S.W. 259, and Lange v. Lawrence (Tex.Civ.App.) 259 S.W. 261, assignments of error were sustained to the action of plaintiff's counsel in inquiring of the jurors in examination on their voir dire as to whether or not they or any of their families were employed by, or had any interest in, any liability insurance company.
In Coon v. Manley, 196 S.W. 606, this court, through Chief Justice Conner, reversed a judgment by reason of improper questions propounded to witnesses and improper argument made by counsel, notwithstanding the objections to the questions were sustained by the trial court, and the jury was instructed not to consider such questions or the answers thereto, and were also instructed not to consider the improper argument made.
In Davis v. Hill (Tex.Civ.App.) 271 S.W. 281, the judgment of the trial court was reversed for improper argument; several matters not in evidence having been discussed, although counsel objected only once to that line of argument. Following the decision in Willis Bros. v. McNeill,57 Tex. 465, and citing Home Life Accident Ins. Co. v. Jordan (Tex.Civ.App.) 231 S.W. 802, the court said:
"As we understand the rule, counsel is not required to object to improper argument."
The following is quoted from the syllabus of the opinion of the Commission of Appeals, which was approved by our Supreme Court, in Parker v. Miller, 268 S.W. 726:
"New trial held improperly denied, where plaintiff's counsel, while discussing testimony of one of plaintiffs in closing argument, was interrupted by defendant's counsel asking if he did not know that same witness had on former trial testified directly contrary to testimony in instant trial; there being no evidence that such was the case." *Page 1000
It further appears that at the time of the interruption of the argument defendant's counsel offered to hand plaintiff's counsel the stenographer's transcript of the witness' testimony on the former trial. In that case the Court of Civil Appeals had overruled the assignment addressed to such action of defendant's counsel; the final conclusion of that court on rehearing being that the evidence was so preponderating in plaintiff's favor that the jury could not have reached a different verdict. But that conclusion was overruled by the Supreme Court on the grounds that the jury were the exclusive judges of the facts, and that by reason of such conduct of defendant's counsel plaintiffs did not have a fair trial. And in the opinion of the Court of Civil Appeals, as shown in 258 S.W. at page 604, it is stated that no objection was made by plaintiff's counsel at the time to the remarks of defendant's counsel, nor did he reserve a bill of exception or request the court to instruct the jury not to consider such remarks of defendant's counsel, or inquire of the jurors on his motion to set aside the verdict for their alleged misconduct in other particulars as to whether or not such misconduct of defendant's counsel influenced the verdict. After reciting those facts, the Court of Appeals said:
"In the absence of all those things we do not think counsel has met the rule laid down by the courts authorizing appellant to take advantage of such error on appeal."
In the determination of assignments of error, such as those now under discussion, the facts of each particular case must be looked to; and in our opinion the test, as gleaned from the authorities discussed, is whether or not the improper proceedings complained of, and consisting either of improper questions propounded or improper argument made or both combined, was reasonably calculated to, and probably did, prejudice the minds of the jury against the party complaining; and, if that question be answered in the affirmative, then the judgment should be reversed by reason of such improper proceedings. Furthermore, according to that test, it follows that a failure of the complaining party to object to improper argument made by opposing counsel will not deprive him of the right to complain of it later as reversible error, unless it reasonably appears that the prejudicial effect of the argument could probably have been removed by an instruction from the court to the jury not to consider it.
Under the authorities discussed above, and those discussed in our former opinion, we have reached the conclusion that appellee's motion for rehearing should be overruled; and it is so ordered.
Since the preparation of the foregoing opinion by the majority, Associate Justice BUCK has written his dissenting opinion which is herewith filed, in which he construes the opinion of the Commission of Appeals, which was adopted by the Supreme Court on a former trial of this case, as holding "that the question of whether deceased was guilty of contributory negligence was one for the jury, and that their verdict should not be disturbed."
In reply to that conclusion we will say that we did not overlook the statement in the opinion of the Commission of Appeals in reversing the original judgment of this court, reading:
"We think the jury was warranted in concluding from the evidence that, though the deceased neither looked nor listened, he was not negligent in attempting to cross the track."
But it appears, from a reading of the entire opinion, that that conclusion had reference only to the conclusion reached by this court that the evidence showed conclusively that deceased was guilty of contributory negligence as a matter of law. As pointed out in the second opinion by this court, rendered since the opinion of the Commission of Appeals referred to above was handed down, the finding by this court, which was reversed by the Commission of Appeals, included the further finding, which was expressly reaffirmed by this court, that the finding by the jury, that deceased was not guilty of contributory negligence in attempting to cross the track without looking or listening for the approach of the train, was so contrary to the preponderance of the evidence as to authorize and require this court to set it aside. Since that finding by this court was a finding of fact, and since it is undoubtedly true that the Supreme Court has no jurisdiction to decide such an issue, we do not believe that either the Commission of Appeals or the Supreme Court intended to reverse that finding of fact by this court, but that the language quoted above should be construed as a determination of the single question whether or not, as a matter of law, there was any evidence to support the finding of the jury referred to above.