Tallabas v. Wing Chong

. On Second Behearing.

In the original opinion we overruled, or held immaterial, or not sufficiently presented, all assignments of error, except one, which was sustained. Upon rehearing, in response *640to motion of appellees, we concluded tliat we were in error' in sustaining the single assignment, and affirmed the judgment. Appellant has filed a motion for rehearing which calls in question for the first time the correctness of our opinion in reference to the other assignments of error.

It is first insisted that we were in error in not sustaining appellant’s assignment of error No. 26, under which was presented the contention that the trial court erred in permitting counsel for appellees to argue to the jury that he had repeatedly requested plaintiff’s counsel to submit the minor plaintiff to a medical examination by a doctor of his choice at his expense, and that plaintiff’s counsel had repeatedly refused to allow him to obtain such examination, so that the facts would be disclosed to the jury, and that the jury should draw their own inferences from such refusal. The bill of exception makes clear that all testimony tending to show that plaintiff, or counsel, had refused requests for such examination had been excluded. The argument complained of contained the statement of a fact namely, that repeated requests for such examination had been refused, which fact was not in evidence, but upon the proffer of same had been excluded. There can be .no doubt, we think, that this was error.

In the first place, it is error to comment upon testimony which has been stricken out. Martin Brown Co. v. Perrill, 77 Tex. 199, 13 S. W. 975; Braekenridge v. Roberts, 114 Tex. 418, 267 S. W. 244, 270 S. W. 1001; Gray v. Cheatham (Tex. Civ. App.) 52 S.W.(2d) 762; McMahan v. City of Abilene (Tex. Civ. App.) 8 S.W.(2d) 554; Texas & N. O. Ry. Co. v. Bass (Tex. Civ. App.) 54 S. W. 172; Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 24 S.W.(2d) 363.

In the next place, the argument, in addition to being a comment on the excluded evidence, included the statement of a fact not in évidenee, and was erroneous, independently of the comment thereon. Same authorities as above.

The effect of the error cannot be said to be confined alone to the issue of damages. We cannot say that it may not have been appropriated by the jury to discredit the testimony of the witnesses for appellant on the issues of negligence.

We have also concluded that we were perhaps in error in holding harmless the refusal of the court to permit the witness Jose Talla-bas to explain his testimony taken by deposition and introduced by the defendants wherein he had stated that the automobile which caused the accident did not stop until the child was even with the back wheels of the witness’ car. He proposed to testify upon rebuttal that he had not so stated to the officer taking his deposition, but instead he had said “front wheels.” We have concluded that it is not certain that the refusal of the court to permit this explanation may not have had a bearing on the question of the credibility of the witness.

The same is true of the excluded testimony in which he- offered to show that his deposition had incorrectly stated that the car ran 16 feet after striking the child. He offered to testify that he had said “16 steps.” We perhaps were unwarranted in saying that this could not have had any bearing upon the issue of negligence, and at any rate, the plaintiff was entitled to the testimony for the consideration of the jury in passing upon the credibility of the witnesses and the weight to be given their testimony.

For the reasons discussed, we have concluded that appellant’s motion for rehearing should, be granted, that our former judgment affirming the cause should be set aside, and that the judgment of the court below should be reversed and the cause remanded for another trial, all of which is accordingly so ordered.