On Motion for Rehearing. Since the rendition of the judgment of this court in accordance with the opinion filed by Associate Justice BUCK (now deceased), we have discovered the decision of our Supreme Court in Grant v. Pendley, 39 S.W.2d 596, 599, which was not cited in briefs of counsel nor referred to in support of appellant's motion for rehearing. In that case it was expressly held that testimony of general character for honesty and fair dealing and for truth and veracity was not admissible in behalf of one who was charged with perpetration of a fraud in inducing the execution of deeds to lands by the other party who had introduced no testimony on the issue of character in either of those respects. In that opinion there is an extended review of authorities on the question and the decision announced was in conformity with the great weight of authority throughout the country; the conclusion so reached being as follows: "We therefore announce the rule to be that supporting evidence of good character, either for truth and veracity or honesty and fair dealing, should only be admitted in those cases where the nature of the action directly involves the character of a party, where a witness has been impeached, or where a party by his pleading or evidence charges his adversary with the commission of a crime involving moral turpitude."
It was noted in that opinion that the decisions in this state are somewhat in conflict on the question. The court then held that the decision in Texas P. Ry. Co. v. Raney, 86 Tex. 363, 25 S.W. 11, in which it was held that the plaintiff was entitled to *Page 310 introduce testimony showing that his reputation for honesty and fair dealing was good, following a question propounded to him by counsel for the defendant as to whether or not he had forged a doctor's certificate pertaining to his physical condition, was obiter and was contrary to the great weight of authorities. Therefore, the decision in the Grant v. Pendley Case has the effect also to overrule several decisions of our courts of appeal which followed the Raney Case, in some of which writs of error were refused by our Supreme Court. Furthermore, the moral turpitude of the act of embezzlement is of like character and no more reprehensible from the standpoint of honesty and fair dealing than the act of defrauding another of his lands by willful misrepresentations inducing the execution of deeds of conveyance thereto; which was the controlling issue in Grant v. Pendley, supra.
As shown by bills of exception, after plaintiff had introduced his testimony and had rested, and after defendant had presented evidence in defense of plaintiff's cause of action and in support of its cross-action and had rested, the plaintiff, in rebuttal of defendant's defense and of its cross-action, introduced six witnesses, namely, F. A. Hall, John J. Winter, Mrs. F. A. Hall, Miss Frances Ochs, Joe Arnold, and Mrs. S. R. McMullen; each of whom, after proper qualifications, testified that plaintiff's general reputation in the community in which he lives for truth and veracity and for honesty and fair dealing was good. And further testimony of each of those witnesses was to the effect that plaintiff did not possess the wisdom and sagacity of a person of mature years, and was of a passive and submissive nature and sometimes easily influenced by others.
The defendant had not introduced any testimony attacking the plaintiff's general character in any of the respects above mentioned, and the objection to all the testimony referred to above was made upon that ground, and upon the further ground that it was irrelevant, immaterial, and prejudicial.
Plaintiff's character for honesty and for truth and veracity and for being of a passive and submissive nature, easily influenced by others, was not directly involved in plaintiff's suit, nor in the defendant's defenses thereto or in its cross-action.
The gist of plaintiff's cause of action was to recover damages for an alleged illegal and wrongful arrest; and to rescind a mortgage lien executed by him upon allegations that his execution thereof was induced by the arrest and by wrongful intimidation and coercion exerted upon him by the defendant, its agents and servants, at the time of the arrest. His further allegations that he was innocent of the charge of embezzlement were incidental only to the main issues; they did not determine the character of plaintiff's cause of action. And the same can be said of defendant's special answer alleging the truth of the charge of embezzlement in defense to the main issues. Indeed, proof of guilt of that charge would have been admissible under the plea of general denial, without any special plea as a basis therefor. And testimony that plaintiff confessed his guilt of embezzlement when charged therewith was introduced by defendant as an admission against interest in rebuttal of plaintiff's testimony already given that he was innocent of the charge. Hence the rule that testimony to the good reputation for truth and veracity of a witness who is not a party to the suit may be introduced as supporting evidence of his credibility, when the same has been impeached and after a proper predicate has been laid therefor, has no application here. And, manifestly, the charge of embezzlement was no part of defendant's cross-action for a foreclosure of the mortgage lien which plaintiff sought to cancel.
Accordingly, the conclusion reached on original hearing that the testimony of the six witnesses referred to above was admissible is now withdrawn, and in lieu thereof, we conclude that the assignments of error complaining of the admission of that testimony should be and they are now sustained. And this ruling is a further reason for reversal of the judgment of the trial court, additional to the conclusion shown in the original opinion that there was misconduct of the jury requiring a reversal.
It follows, therefore, that appellant's motion for rehearing upon the point above discussed must be sustained.
Appellee has also filed a motion for rehearing in which it is strenuously insisted that we were in error in sustaining the assignment presenting the contention of misconduct of the jury. One point is especially stressed, and that is that notwithstanding the showing that the jury, before attempting to answer any of the special issues, took a vote to determine whether or not plaintiff was entitled to recover and the ballots cast by eight of them were in the affirmative, yet no juror testified that they then attempted to answer the special issues so as to accomplish such a result, as was true in some of the cases cited. However, we believe that the absence of such a showing is not an answer to the assignment, since the votes first cast in favor of the plaintiff for a recovery were reasonably calculated to influence the further findings on the special issues; and in the absence of a clear showing and beyond a reasonable doubt that it did not have that effect misconduct of such a character as to vitiate the verdict was established. Indeed, as held in Texas P. Ry. *Page 311 Co. v. Van Zandt (Tex.Com.App.) 44 S.W.2d 950, and other cases therein cited, the presumption of harmful effect of misconduct cannot be overturned by the most emphatic denials of the jurors to the contrary.
We have duly considered all other points presented in appellees' motion for rehearing, and for the reasons stated in the opinion on original hearing without the necessity of further discussion, said motion for rehearing is in all respects overruled.