(dissenting).
I respectfully dissent. I would reverse and remand this case for another trial because of the granting of the Plaintiff’s Motion in Limine regarding the remarriage of the Plaintiff. It is the writer’s opinion that the act of the Court in granting Plaintiff’s Motion in Limine was error because it prevented the Defendant from inquiring on voir dire of the jury panel if any of them knew “Mrs. McClurg” or “Agene McClurg,” and secondly, it is not the law *202of Texas that the mere fact of remarriage of the Plaintiff in a wrongful death action is inadmissible.
Prior to the time that the jury panel was assembled in the Courtroom, the Court ruled on the Plaintiff’s Motion in Limine that it was:
“ . . . . the ORDER of the Court that the defense in this case not refer to or allude to the fact of the Plaintiff’s remarriage in any fashion whatever. * * * * * * Further it is the ORDER of the Court that no reference be made to the fact that Plaintiff in this case has had her name changed to Anderson.”
In its order, the Court did give Defendant permission to inquire of the panel respecting any knowledge or acquaintanceship with the present husband of the Plaintiff, “without at the same time, of course, revealing the remarriage.”
Plaintiff sued in the name of Agene Anderson, but during the pendency of the suit, she married Gene Roark McClurg, and some weeks prior to date of trial, she filed suit in Bryan, Texas, and had her name changed from McClurg to Anderson under the provisions of Art. 5928, V.A.T. C.S. This was followed by her Motion in Limine in the case before us. To preserve the point of error, the Defendant objected to the pleadings of Plaintiff using the name “Anderson,” excepted to the Court’s order on the Motion in Limine, and objected to that portion of the charge on damages for Mrs. Anderson. By bills of exception, Defendant elicited testimony from the Plaintiff that she married Mr. Mc-Clurg in November, 1969, here in El Paso (where this suit was pending), that they moved to Bryan the latter part of January; that they had become acquainted with a number of people there and she was known to them as Mrs. McClurg and still is at the time of trial; that she had her name changed by Court order “in order to keep you from calling me Mrs. McClurg or some other name other than Anderson .,” and that her bank accounts and all of her records since marriage are in the name of McClurg; that when this lawsuit is over, she intends to go back to Court and have her name changed back to McClurg. Other testimony shows that the Plaintiff grew up in El Paso.
This case went to trial on June 15, 1970, in El Paso, before a jury panel of El Paso citizens, slightly less than six months after “Mrs. McClurg” moved from El Paso. By the Court’s order, the Defendant was not permitted to inquire of the prospective jurors if they even knew Mrs. McClurg, much less have an opportunity to inquire into any relationship which would show bias or favor of the Plaintiffs. Art. 2134, Sec. 4, V.A.T.C.S., provides that any person who has a bias or prejudice in favor of or against either of the parties shall be disqualified to serve as a juror. Obviously, it is error to deprive a party the right to inquire as to such possible disqualification, and no such inquiry can be made if he is prohibited from identifying the party to the jurors in the first instance. Members of the panel, and jury, may have known “Mrs. McClurg” but defense counsel could only uncover that fact by violating the Court’s order. Such was not necessary to preserve the error. This is an instance when the harmless error rule would not apply, for there is a violation of a fundamental right, the right of trial by jury. Heflin v. Wilson, Tex.Civ.App., 297 S.W.2d 864 (CCA 1956, writ refused); Tamburello et al. v. Welch, 392 S.W.2d 114 (Tex.1965). See also Texas Employers’ Insurance Association v. McCaslin et vir., 159 Tex. 273, 317 S.W.2d 916 (1958).
The majority has upheld the trial Court in its ruling that the Defendant could not show the fact of the Plaintiff’s remarriage. Permitting evidence of the simple fact of remarriage is a different matter from permitting evidence in mitigation of damages. I am not convinced that it is the law of Texas that evidence of remarriage by the surviving spouse is, per se, inadmissible. The decisions of our Courts stem from and *203are based on the early case of Gulf, C. & S. F. Ry. Co. v. Younger, 90 Tex. 387, 38 S.W. 1121 (Tex.Sup.1897), in which the Supreme Court answered certified questions as to the admissibility of certain evidence. The nature of that evidence is the distinction that needs to be made. The suit was brought by J. A. Younger, in his own behalf, and that of his minor daughter, Della Younger, to recover damages for the death of his wife, the mother of Della. The Plaintiff offered evidence by a witness, one Fowler, as to the qualifications of Mrs. Younger as a wife and mother, and the Defendant sought on cross-examination to introduce evidence from Fowler and Plaintiff, Younger:
“ . . . . that subsequent to the death of plaintiff’s wife, Annie Younger, about the 7th day of June, 1894, plaintiff, Dr. J. A. Younger, married again, marrying one Miss Sheets; that the said Miss Sheets was, and long has been, a resident of the town of Ballinger; that she was a woman of culture and refinement, popular in the said town of Ballinger and Runnels County, had a great many friends, had lived there a great many years, was fit and capable to render to the plaintiff, and had since her marriage to him rendered to the plaintiff, every service that his deceased wife, Annie Younger, had rendered, and that she was qualified and fitted to rear the minor, Della Younger, as well as Mrs. Annie Younger, the deceased, would have done; that, if anything, her advantages and education had been superior to those of Mrs. Annie Younger; that she was able to, willing to, and in fact did, render to the said Della Younger, every service that Annie Younger could have rendered.”
This evidence was rejected and brought forward in Defendant’s bill of exceptions “A,” and the question certified was:
“Was the evidence of Witnesses Fowler and Younger admissible, as set out in bill of exception No. A ?”
The Supreme Court answered “No” to the question, and went on to discuss matters of damages and mitigation of damages, saying:
“If the plaintiff’s wife was killed through the negligence of the defendant, he then lost the value of her life as a wife; and the fact that her place had been supplied by a subsequent marriage does not in any manner operate to mitigate the damages. . . . ”
Thus, the question presented and the reasons for the answer given pertained to evidence offered in mitigation of damages. Subsequent cases are to the same effect, the latest being J. A. Robinson Sons, Inc., et al. v. Ellis, et al., 412 S.W.2d 728 (Tex.Civ.App.—Amarillo, 1967, Ref. n. r. e.) in which then Chief Justice Denton said:
“It is also settled that the remarriage of a surviving spouse or the possibility thereof, does not affect the damages recoverable for wrongful death of the deceased spouse. Gulf C. & S. F. Ry. Co. v. Younger, 90 Tex. 387, 38 S.W. 1121, Gulf C. & S. F. Ry. Co. v. Moser (Tex.Civ.App.) 277 S.W. 722. As a corollary to the above general rule, evidence of the surviving spouse’s relationship is not admissible where it is offered only for the purpose of mitigating damages. Gulf C. & S. F. Ry. Co. v. Younger, (supra). Texas Electric R. Co. v. Stewart (Tex.Civ.App.) 217 S.W. 1018 (1081) (Writ Ref.). See 87 A.L.R.2d 252. Appellants recognize these general rules in that they seek to ascertain facts beyond the bare fact of remarriage; . . . .”
(emphasis mine)
The holding in the cited Moser case was:
“There was no error in refusal of the court to instruct the jury to confine the period of Mrs. Moser’s recovery to that of her widowhood.”
Admissibility of evidence of remarriage was not involved. In the cited case of *204Texas Electric R. Co. v. Stewart, evidence of remarriage was admitted:
“The court at the request of appellees charged the jury that they should not consider, in mitigation of the damages which they might allow to the appellee Mrs. Julia Stewart Carter, the fact of her remarriage. The giving of this charge is assigned as error. The record discloses that the fact of this appellee’s remarriage was shown by evidence introduced by appellant, and the court having admitted such testimony, which was, we think, inadmissible for the purpose for which it was evidently offered, the court did not err in giving the charge correcting the error committed in admitting it.”
It must be noted that the Court says inadmissible “for the purpose for which it was evidently offered,” and we have no information from the case as to what those purposes were. More important, the point of error was not as to the admissibility of the evidence, so the statement was dictum. The holding was an approval of a charge in which evidence of remarriage had been allowed and an instruction given to disregard it in assessing damages. The Supreme Court gave the holding an outright “writ refused.”
It is regretted that this opinion contains so many quotations, but it is thought necessary to do so to show exact holdings of the cases and dispel the notion that the law is well settled and absolute that evidence of the fact of remarriage is inadmissible. None of the decided cases discuss or speak of reasons for not admitting evidence of the fact of remarriage; all turn to a discussion of mitigation of damages, or they cite the leading case of Gulf, C. & S. F. Ry. Co. v. Younger (supra) as holding that evidence of remarriage is inadmissible. As we have seen, that was not the question certified to the Supreme Court in that case. Therefore, • I cannot agree with the majority in ruling on Defendant’s points of error numbered 40 and 41 which are directed at the Court’s ruling on Plaintiff’s Motion in Limine, which involved only the question of whether evidence of the simple fact of remarriage is admissible. The majority concludes such was not error because withholding from the jury, evidence that is clearly inadmissible cannot constitute error. As seen from the cases discussed, if this is the law, it has never been applied in the procedure used here. On the other hand, we have the holding in Texas Electric R. Co. v. Stewart (supra) where evidence of remarriage was allowed and the jury instructed not to consider such fact in mitigation. Mitigation of damages is the crux of the matter. This requires that no evidence be admitted on that issue. To place the fact of remarriage in the category of mitigation of damages, is to judicially hold that it does affect the award. Thus, it is made an element of damages, when it is not a proper one. Plaintiff in this case recognizes that truth, for she went to Court and procured s solemn judgment of a District Court that it was to her interest and benefit to change her name in this very suit. Such a procedure should not be allowed. It is one thing to say that the fact of remarriage is inadmissible, and another thing for the Court to become a party to an affirmative action to conceal. The trial of a lawsuit is a search for the truth. Citizens are forced to forego their daily pursuits and render service to make that determination by weighing the evidence and judging the credibility of the witnesses. The evidence may be nebulous, confusing, and contradictory, so the jury should have all the help which they can be given. Nothing should be kept from them in aid of their search for the truth without good reason. No good reason can be given for withholding the fact of marriage from them in a case of this nature, unless we assume they will then violate their oath and disregard the Court’s instruction not to consider it in arriving at the damages. Public policy requires that jury service be not discouraged. Jurors who have been duped in a Court proceeding, or made to feel that they could not be trusted to do their duty, will not be *205willing to serve again, or will serve with reservations of a credibility gap. One can imagine the feelings of this jury when they discovered, after ten days of working on the problems of this widow, that everyone in the Courtroom, except them, knew all the time that she was not really a widow, and the Plaintiff knew it better than anyone. As a matter of public policy, proceeding in this manner should not be the law.
The writer agrees with what was said by the Missouri, Kansas City Court of Appeals, in Glick v. Allstate Insurance Company, 435 S.W.2d 17 (1968):
“Clearly it would have been error for the court to have declared that knowledge of the widow’s remarriage should be withheld from the jury in the trial of such actions. In our opinion such procedure would not be consistent with the high standards of integrity which the judicial process should maintain. The following quoted excerpt from Dubil v. Labate, 52 N.J. 255, 245 A.2d 177, decided by the Supreme Court of New Jersey, fully expresses our views: 'Our resolution of this issue does not dispose of this appeal. Though evidence of the plaintiff’s remarriage is not relevant to the question of damages, we disagree with the trial court’s attempt to suppress any mention of the remarriage. It would be offensive to the integrity of the judicial process if the plaintiff, after taking an oath to be truthful, were permitted to misrepresent her marital status to the jury. Of course, the defendants may not inquire into the details of the remarriage nor may they offer evidence concerning it. However, the desirable exclusion of evidence relating to the remarriage may not be carried to the point of affirmatively misrepresenting the truth to the jury. It seems to us that in the course of the trial of a wrongful death case, it would be virtually impossible to avoid mention of a remarriage without resorting to untruths. * * * Thus, we believe that — while evidence of the details of a remarriage, such as the earning of the new spouse or the birth of a child, is to be excluded — the mere fact of a plaintiff’s remarriage should not be kept from the jury. The trial judge should instruct the jury, at the beginning of the case, that the plaintiff has remarried but that this fact is to play no role in their determination of the pecuniary advantage which would have resulted from a continuance of the life of the deceased. We have recognized in another contest the desirability of honestly presenting certain facts to a jury with instructions that it would be improper for them to consider these facts in their deliberations. State v. White, 27 N.J. 158, 178-179, 142 A.2d 65 (1958). In the present situation we have no doubt that the jury, after proper instructions by the court, will be capable of returning a verdict uninfluenced by the plaintiff’s remarriage.’ ”
Procedural problems are eliminated by revealing the fact of marriage and instructing the jury not to consider such fact in arriving at damages. First, the restricted method of examining jurors on voir dire in order not to disclose remarriage is eliminated. Second, the hazard is eliminated that in the examination of witnesses, some planned or inadvertent statement may bring out the hidden fact and cause a mistrial, contempt trial, or trial under a cloud of possible error. Third, discussion in the jury room of the fact of remarriage is a hazard in a case of this nature, and could bring on a subsequent trial of the jury (a distasteful thing to be avoided whenever possible). Fourth, there is the possibility of disruption of the trial schedule if the “widow” is in an obvious state of pregnancy when the case is set or called for trial. (More litigation as to right to a continuance.) Fifth, there exists the danger that the jury will infer that the Plaintiff has remarried and will then consider her case without benefit of the Court’s instruction not to consider such fact in arriving at her damages. This is a serious possibility where, as here, counsel *206was permitted to ask on voir dire if the jurors knew a man by the name of her husband.
For the reasons stated, I would reverse and remand this case for another trial with instructions to the trial Court to reveal the fact of marriage, permit no evidence going to mitigation of damages, and instruct the jury not to consider the fact of remarriage in assessing damages.