I dissent.
I would reverse the judgment on the ground that the misconduct of counsel for plaintiff deprived defendant of its right to a fair trial.
In his opening statement, counsel for plaintiff made a preliminary appeal to the sympathy of the jury by stressing that plaintiff had left school after the seventh grade to go to work and had worked for defendant for 36 years. Thereafter in the course of the trial, counsel deliberately sought to implant prejudice in the jury against defendant. He insinuated without offering any evidence to prove it, that defense counsel had withheld photographs favorable to plaintiff. He referred *322to defendant and its attorneys as ‘ cheapskates. ’ ’ He asked rhetorical questions calculated to convey the impression that defense witnesses were not honest in their testimony. Nor was that all. After several days of trial, when a trial court is normally reluctant to grant a mistrial, he used his closing argument to intensify his appeal to the passion and prejudice of the jury. The appeal was the more insidious because it followed upon a fulsome declaration of his great trust in the jury system. His trust was such that he urged a verdict on issues extraneous to the merits. Approximately a third of his argument consisted of emotional attacks on defendant, its counsel, and its witnesses for defendant. He called upon the jury to “tell the Southern Pacific in that verdict it is high time to quit treating their employees that way. ’ ’
There is no question that his conduct was on its face prejudicial. The question to be resolved is whether or not defendant waived its right to complain even though it repeatedly made objections at the trial.1 The objections were more than enough to alert the trial court. The court itself sought to call a halt to the objectionable conduct by admonishing counsel for plaintiff to “confine yourself to the evidence and such reasonable *323implications as you may draw therefrom. ’ ’ When counsel for plaintiff nevertheless made fresh appeals to the passion and prejudice of the jury, and defense counsel continued to *324object, tbe court once again admonished counsel for plaintiff to “stay within the confines.” 'When counsel for plaintiff persisted in his misconduct, in the face not only of defendant’s objections and motions for mistrial but also of the admonitions of the court, he evinced a studied determination to ride roughshod over any and all objections or admonitions.
Though he threw one caution after another to the wind, he now contends that defendant waived objection to any misconduct by not supplementing his repeated objections with a request that the trial court admonish the jury to disregard the misconduct.2 No admonition, however, could cure the preju*325dicial effect of such misconduct as prevailed throughout this case. Accordingly, defendant’s failure to request admonitions to the jury does not preclude it from challenging the misconduct on appeal. (Hoffman v. Brandt (1966) 65 Cal.2d 549, 553 [55 Cal.Rptr. 417, 421 P.2d 425]; Horn v. Atchison, T. & S. F. R.R. Co. (1964) 61 Cal.2d 602, 611 [39 Cal.Rptr. 721, 394 P.2d 561]; Love v. Wolf (1964) 226 Cal.App.2d 378, 392 [38 Cal.Rptr. 183].) Plaintiff’s counsel can hardly claim that his repeated appeals to passion and prejudice were of such little appeal that they could have been simply erased by admonitions.
Counsel for plaintiff offers a brace of alternative contentions, namely, that there was no misconduct but only colorful argument, and that in the event of any error, it was cured by the trial court’s remittitur. These contentions cannot be sustained. It is misconduct to compare the wealth of plaintiff and defendant (Hoffman v. Brandt, supra, 65 Cal.2d 549, 553; Love v. Wolf, supra, 226 Cal.App.2d 378, 388-389); counsel for plaintiff did so.3 It is misconduct to accuse defendant and defendant’s counsel of suborning perjury (Love v. Wolf, supra, 226 Cal.App.2d 378, 391); counsel for plaintiff did so.4 It is misconduct to accuse defense counsel of withholding evidence (Keena v. United Railroads (1925) 197 Cal. 148, 158-160 [239 P. 1061]); counsel for plaintiff did so.5 It is misconduct to suggest to the jurors that they measure damages by what they would take to endure plaintiff’s suffering (Horn v. Atchison, T. &. S. R. R.R. Co., supra, 61 Cal.2d 602, 609; Zibbell v. Southern Pac. Co. (1911) 160 Cal. 237, 255 [116 P. 513]); counsel for plaintiff did so.6 It is misconduct to suggest facts not in evidence that counsel knows could be contradicted by evidence that the court had excluded (Hoffman v. *326Brandt, supra, 65 Cal.2d 549, 554); ■ counsel for plaintiff did so.7
The courtroom is a forum for the presentation of evidence and rational argument, not a stage for over mellow drama. The responsibility of a lawyer is to raise issues, not scenes, and to reason about them in nontheatrical terms. Invective, with all its theatrics, has no place in the language of the law.
When appeals to passion and prejudice may have influenced a verdict, they may have influenced it on the issue of liability as well as on the issue of damages. Hence, in such a case remittitur cannot cure the error. (Minneapolis, etc. RR. Co. v. Moquin (1931) 283 U.S. 520 [75 L.Ed. 1243, 51 S.Ct. 501]; Sanguinetti v. Moore Dry Dock Co. (1951) 36 Cal.2d 812, 820 [228 P.2d 557].) There is no cure but reversal for an error that impairs the right to a fair trial. The right to a fair trial includes the right to an impartial trier of fact and the correlative right to a trial free of appeals to passion and prejudice.
We take great care to excuse prospective jurors who may be subject to emotional appeals. We take great care to instruct jurors not to discuss the case with outsiders or to read about it, so that they will remain beyond the reach of influence outside the courtroom. It is a minimum propriety to guard against calculated attempts to prejudice the jury inside the courtroom, for they do violence to the substantial rights of a litigant. Still worse, they would in the long run so debase the judicial process that no one could enter a courtroom confident of a fair trial.
Counsel for defendant objected ten times during the closing argument for plaintiff. The appeals to prejudice and the corresponding objections are tallied below:
First: “Now, ladies and gentlemen, I know that before you folks sat here, that you came here on January 25th, 1964, and I know in your hearts, as in my heart, after you saw the presentation of this case, that I’ll bet you are amazed and stunned beyond belief. This isn’t really 1964 at all. This goes back to the early stages of man’s inhumanity to man long before they were savages, because I submit, and I will discuss with you folks this afternoon, never in the history of man could anyone have been taken down the tubes or down the drain like one Mike Sabella was.
“And I say to you, ladies and gentlemen, that the conduct of Ms employer, the Southern Pacific Company in this ease, is about as reprehensible in 1956 [sic]—
“Mr. Phelps [counsel for defendant]: Tour Honor, I am going to object to this line of argument and assign it as misconduct, particularly in view of Tour Honor’s ruling that is keeping out of evidence the matter that I wanted to introduce, the matter that I—the argument is along the lines I was anticipating and I could have met and did want to meet by evidence, and I will object and cite it as misconduct and ask for a mistrial.
“The Court: Well, the motion for a mistrial will be denied; and I suggest, Mr. Teerlink, that you confine yourself to the evidence and such reasonable implications as you may draw therefrom.
“Mr. Teerlink: Tes, Tour Honor.’’
Second: “Did they even agree to pick up $11.50 a month to see that the poor guy got his hospitalization? No.
“Mr Phelps : If Tour Honor please, I am going to object in view of the offer of proof I made in chambers as to what this man’s actual situation was and the election he made, and I think it is misconduct to encroach in the manner that has been done.
“Mr. Teerlink: The stipulation, as I understand, Tour Honor, was *323that the railroad company tendered the right to pick np his hospital benefits, and they declined; that was the stipulation that you entered.
‘‘ Mb. Phelps : I understand that, but you are arguing something that prevents me from answering.
‘ ‘ The Court : Let’s not go beyond the stipulation. ”
Third; ‘‘ They cut off—no more hospital benefits, no more out-patient, by the time of December—
“Mr. Phelps: I make the same objection, Tour Honor please, in view of the situation, my hands having been tied—
“Mr. Teerlink: I say there are no benefits payable after December, That is the evidence.
“Mr. Phelps: ‘What did the Southern Pacific Company do when you ’—•
“The Court: Let’s—
“Mr. Phelps: ■—I object to that and assign it as misconduct.
“Mr. Teerlink: That is the evidence, Tour Honor. He had no benefits after December.
“The Court: I know, but you are going beyond that.
‘ ‘ Mr. Phelps : Tou foreclosed me.
‘ ‘ The Court : Let’s stay within the confines. ’ ’
Fourth: “Do you think that was strategy? This is the way they play the ball game. They don’t know how to play it fair. The last witness, ladies and gentlemen, is, lo and behold, McLaughlin—
“Mr. Phelps: I object and assign that as misconduct: ‘They don’t know how to play it fair.’ There is a ease that this very firm has been reversed for, argument of a similar nature, and I assign it as misconduct and ask for a mistrial.
“The Court: Motion denied.”
Fifth-. “They employ 45,000 people, and they couldn’t make room for him to do anything—maybe even delivering the messages down at 65 Market Street; you mean to tell me, ladies and gentlemen, if you have got the good will of your employee at stake that you won’t at least call him up and say—
“Mr. Phelps: I am going to object to this on the same ground and cite it as misconduct. Tour Honor knows what the situation is. Tour Honor knows what I was foreclosed from, and I think that this is improper argument.
“The Court: Just a moment.
“Mr. Phelps: Tour Honor knows what the situation was.
“The Court: Let’s keep it within the confines of the evidence.”
Sixth-. “Now, ladies and gentlemen, isn’t it interesting to you, when they’ve got all these pictures, where is that claims man with the rest of the pictures they didn’t show? He has been around here for two weeks, and we haven’t seen or heard from him.
“Mr. Phelps: Just a moment. He is implying— Tou told me you didn’t want him this morning.
“Mr. Teerlink: Only—
“Mr. Phelps: Tou told me you didn’t want him. I had him here at your request.
“Mr. Teerlink: Sit down and let me finish my argument.
“The Court: All right, gentlemen; we have a time limit. Please.”
Seventh: “Does it seem ironical to you, ladies and gentlemen, that they can take aerial photographs—
“Mr. Phelps: I—
“Mr. Teerlink: Will you keep out of my argument. —that they can take aerial photographs within a few hours or less than that? Imagine
*324getting an airplane and camera equipment and start shooting photographs to defeat a claim—and rulers, when all they would have had to do—’ ’
(The photographs were not taken from an airplane.)
Eighth: “Mike Sabella was lying on his back with a busted back thinking maybe they were going to do something decent for him, maybe once in a life the friendly Southern Pacific could be friendly. No, sir. All we get is a second best, a lousy evidence that they decide to bring in.
“Ton see, all the pictures that may show it to his advantage, you don’t see them.
“Mr. Phelps: Now—
‘ ‘ Mr. Teerlink : They are not here.
‘‘ Mr. Phelps : I will object to that and assign it as misconduct. This is, again, characteristic of the defense, and without any evidence, without justification, and the type of thing that the Courts have said is not proper, and I object to it.
‘ ‘ The Court : Go ahead. ’ ’
Ninth: “Now, what about poor Mr. Medina [a witness for defendant] ? What do you think poor Mr. Medina must think when he sees and he knows what they are doing to Mike? What would happen to poor Medina if he didn’t go along with it? Ever think about that?
“When they see how they threw him on the human trash pile, how quick would they give it to Medina if he didn’t go along—
“Mr. Phelps: I object again and cite this as misconduct in view of the fact I was foreclosed from proving that isn’t the fact as to what we did or what was done for this man, and I cannot stand still and listen to this, knowing what the facts are. ’ ’
Tenth: “ [Y]ou can look at the sorrowful look in a man’s eyes when you are taking his deposition, and they cry out to you, ‘I would like to help you, Mr. Teerlink, but I can’t; I’ve got to send him down the tubes; it is him or me, ’ and that is the way you see it.
“Mr. Phelps: If Your Honor please, ‘down the tubes,’ when this man is down—the situation is such, Your Honor please, I am foreclosed from saying it—
“Mr. Teerlink: You’ve said that about 14 times.
“Mr. Phelps: The ruling—
“Mr. Teerlink: You haven’t given him a job; that is for sure.
“Mr. Phelps: That is just— Now, there we go again.
“If Your Honor please, instruct Mr. Teerlink to desist from that. I assign it again as misconduct and move for a mistrial in view of the offers that I made of proof.
“The Court: Denied. Proceed.”
It is at least debatable that implicit in any objection to misconduct is a request that the jury be admonished to disregard it. Thus, in Hoffman v. Brandt (1966) 65 Cal.2d 549, 553 [55 Cal.Rptr. 417, 421 P.2d *325425], counsel objected but did not request an admonition. The trial court, however, admonished the jury on its own motion. We nevertheless held that the admonition did not cure the error.
Referring to plaintiff, counsel said: “You saw what they did to him. You saw the thanks he got. He got just exactly what they give to any poor guy with a seventh grade education: he got nothing. ’ ’
About defendant, he said: “They employ 45,000 people, and they wouldn’t even make room for him to do anything—maybe even delivering the messages down at 65 Market Street. ’ ’
See note 1, supra, Ninth.
See note 1, supra, Fourth, Sixth, and Eighth.
“And as to that 6,570 days of misery he has got left, there isn’t a soul in this world that would put up with what Mike Sabella is going to have to put up with, the hopelessness of it all, for a measly figure we have got down there. ’ ’
See note 1, supra, First, Second, Third, Fifth, Ninth, and Tenth. The line of argument that defendant refused to give plaintiff a job is contradicted by the fact that plaintiff did not attempt to return to work but applied for a pension instead. We may assume, without deciding, that evidence of the pension was inadmissible. (Eichel v. New York Central R. Co. (1963) 375 U.S. 253 [11 L.Ed.2d 307, 84 S.Ct. 316].)