On Motion for Rehearing.
We have carefully considered the forceful motion for a rehearing presented by the able counsel for appellant, and confess, as we did in our original opinion, that the vital question raised in various forms has seemed difficult of a correct determination; but, in the absence of adjudicated cases that are considered clearly in point, and that we feel should be approved, to point the way, we do-not see our way clear to grant the motion. Nor on the vital question do we feel that we-can, without prolixity, materially add to the views expressed in our original opinion. We think it sufficient to say that we adhere to-what is there said and to be implied.
By reference to our original opinion,.however, it may be seen that in concluding we-used the following language, to wit;
“Several minor and incidental questions are raised in the brief of appellant, but after examination we do not think them of a character which requires discussion or authorizes a reversal of the judgment.”
Among the questions disposed of in this-general way is one presented by appellant’s sixth and seventh propositions for reversal. Under those propositions it is urged that the-trial court committed reversible error in propounding certain questions to a witness, and of our general disposition counsel complain, as follows:
.“This court, much to our surprise, dismisses a. serious question of that character by simply stating: ‘Several minor and incidental questions-are raised in the brief of the appellant, but after examination we do not think them of a character which requires discussion or authorizes a reversal of the judgment.’
“We must most respectfully, but, nevertheless, most emphatically, disagree with this honorable court when it holds that the action of the trial court, under facts and circumstances-such as shown by the record in this casé, constitutes a minor and incidental question. We-believe that we are amply supported in this position by no less authority than the Supreme-Court of this state, for in the case of Hargrove v. Fort Worth Elevator Co., 276 S. W. 426, the-case is reversed on. the sole ground that the conduct of the court in propounding certain questions to a witness was prejudicial and the court,, after setting out the facts, uses this language:
“ ‘These questions indicated that the judge-was not only attempting to discredit the testimony of the witness, but also was of the opinion-that the nuisance complained of was not caused’ by the defendant in error, but was caused by the-Ralston Purina Mills. This conduct was improper, and calculated "to prejudice the rights-of plaintiff in error. It was clearly an interfer*313ence with the right of a litigant to have the jury pass on issues of fact without being influenced by prejudicial statements made by the judge in their presence and hearing. It was unfair, and we may not presume that the injury resulted.
“ ‘On the trial of all cases the judge should preside with impartiality, and in a trial before a jury, who are the sole judges of the credibility of witnesses and the weight to be given their testimony, he should be especially careful to say or do nothing which would be calculated to influence their minds in regard to facts in issue, the .solution of which it is their duty to determine. While it is within his authority to examine witnesses, in doing so he should not indicate by words or manner either' his disbelief of a witness or of a material fact which a litigant is endeavoring to establish.’
“It is. exceedingly difficult for us to understand why a court that bears the unimpeaehed record for fair dealing and a desire to see that the parties litigant receive at the hands of courts and juries the treatment to which they are entitled which this honorable court bears, could pass by conduct of this character on the part of the trial court without even so much as a reprimand in its opinion, but, on the contrary, should tend to lend encouragement of this character on the part of the trial court by reciting in its opinion that when a litigant raises a question of this character it should be met with the terse statement tl(at it is a minor and incidental question. We wish to assure this honorable court that we have never at any time presented a question to an appellate court in a light or frivolous manner or for the mere purpose of incumbering the record or taking up the court’s time and attention. We would add further that this proposition of error was presented in the best of faith, is founded on facts, and, had we the power to convey to this court the surrounding facts and circumstances, we do not hesitate to say that this court would unquestionably revferse and remand the case on this one proposition alone, and we certainly think that it is entitled to more careful consideration than this court has seen fit to accord it. We respectfully urge that the court reconsider its action on this question and withdraw that portion of its opinion which dismisses it in such a light manner and enter such an opinion in this case as will at least serve as a warning to trial courts in the future to give to every litigant that fair and impartial trial which is the very bulwark of our institution of free government.”
We beg to assure counsel, for whom we have very great respect, that it was very far from our thought to impute to them any frivolity or want of sincerity in urging error in this respect. We had considered the propositions and merely thought that the matter was not of sufficient importance to add to an opinion perhaps already too lengthy; but, inasmuch as counsel are so insistent, we will notice the question more particularly.
Omitting formal parts, the bill of exception taken at the time reads as follows:
“Be it remembered on the trial of the above entitled and numbered cause, after the.defendants had placed the witness J. L. Kelley upon the stand, and after the attorneys for both defendants and plaintiff had concluded their direct and cross-examination, the court, upon his own motion and over the objection of plaintiff, propounded the following questions to him, to wit:
“The Court: How long have you been living in this country? A. I have been in this county 5 years.
“Q. Have you noticed at what season, of the year they have more lightning than any other season? A. Yes, sir.
“Q. What season of the year? A. In the spring.
“Q. They have more in the summer time than in the winter time? A.. Yes, sir.
“Q. What would be your idea of a man working on a pipe line with 300 feet exposed on July 30th? In your opinion, would they be engaged in a more hazardous work than ordinary men would be engaged in if hot around this exposed pipe?
“Mr. Malone: We will object to that line of questioning, if the court please. We do not think it -is admissible.
“The Court: All right, Mr. Kelley, you need not answer.
“To which action on the part of the court the plaintiff objected for the following reasons, to wit: (1) Because said questions showed by their manner and form that the court was in sympathy with and was seeking to aid the defendants in securing a recovery against, this plaintiff; (2) because such action on the part of the court displayed a bias and prejudice on his part in favor of the defendants and against this plaintiff; (3) because such action on the part of the court was a comment upon the weight of the evidence by the court; (4) because such action on the part of the court was an attempt upon his part to aid and assist the defendants in making out a case, and to supply testimony which he considered to be necessary to assist them in securing a recovery.
“To the action of the court in thus interrogating the witness, the plaintiff then and there in open court excepted and here and now in open court tenders this its bill of exception No. 3, and prays that same may be examined, signed, and approved by the court, and ordered filed as a part of the'record in this cause, this the 23d day of December, A. D. 1924.
“Seay, Seay, Malone & Lipscomb,
“Wantland, Dickey & Glasgow,
“Attorneys for plaintiff.
“This bill of exception examined and found correct with the following qualification: At the conclusion of the testimony, and before the cause was submitted to the jury, the court, on his own motion, instructed the jury not to consider for any purpose the questions propounded by the court to the witness J. L. Kelley, as above set out, nor to consider his answers thereto, and with such qualification is signed, approved, and ordered filed as a part of the record in this cause, this the. 23d day of December, A. D. 1924.
“Paul Donald,
“Judge Presiding.”
We see nothing in all this that justifies a reversal of the judgment below or even worthy of extended discussion. We have no disposition to criticize or disapprove what was said on the subject in the ease of Hargrove v. Fort Worth Elevator Co. (Tex. Com. *314App.) 276 S. W. 726. It is undoubtedly true that it is error for a trial judge in a jury trial, by questions or otherwise, to intimate that a witness is or is not worthy of credence, or to directly or by necessary implication state his opinion on a question for the jury’s determination. But the rules in this respect ■should not be extended to unreasonable lengths. The trial judge is entitled to fair treatment. 1-Ie should not be restricted to the functions of a mere umpire between opposing counsel. He is charged by conscience and law with the fundamental duty of seeing that truth is established and justice done. In doing this, of course, he must observe and be guided by the statutes and authoritative decisions designed to bring about such results; but, when it is reasonably apparent that a disinterested and fair effort has been made to do so, we think the complaining party should bear the burden of showing clearly that the court’s action was materially prejudicial to him.
It is incumbent on a trial judge to hear and understand what testifying witnesses say in order to properly prepare and submit to the jury the issues, to intelligently pass upon bills of exceptions, motions for a new trial, statements of fact, excess in verdicts, etc. Apparently the bill of exception shows that no objection was urged to the first four interrogatories propounded by the court to the witness until after the witness had answered, and that, upon objection being made to the fifth, the court immediately withdrew the question, and later, as shown by his explanation, specifically instructed the jury not to consider for any purpose the questions propounded by the court to the witness, nor to consider his answer thereto. We fail to see in the questions propounded any plain indication of bias or prejudice on the part of the court, and certainly think, under the circumstances, an intelligent jury would not be misled thereby to the prejudice of the appellant.
A similar complaint is made of our general disposition of an error assigned to certain language used by counsel for appellee in his argument to the jury. As shown by the bill of exception taken at the time, the language objected to is as follows:
“Tell me' there is no evidence. A great big corporation sends a shrewd lawyer (pointing to counsel for the plaintiff, United States Fidelity & Guaranty Company) to hornswoggle this widow out of a verdict.”
We do not wish to be understood as approving the argument, for this court at all times has endeavored to closely confine counsel in argument to the evidence and the record, but it is rare that a court will indulge the complaint of a party who has provoked the objectionable argument, and it will be noted from the opening phrase of the argument under consideration, “Tell me there is no evidence,” that it is indicated that the remarks of counsel were in reply to an assertion of counsel for appellant. The facts' that appellant was a corporation doing business in more than one state, and appellee a widow, were before the jury appearing on the face of the pleadings, and the art or shrewdness of appellant’s counsel was doubtless manifested throughout the trial, and of which the jury were not probably misled or influenced by the statement of counsel for appel-lee. While the term “hornswoggle” cannot be approved by the literati and .may sound somewhat formidable, it has, nevertheless, found its way into the English language as a simple slang word meaning, as defined by Mr. Webster in his unabridged dictionary, “to triumph over; overcome; beat; bedevil.” In the absence of it appearing otherwise, we must assume that the jury attached the proper meaning to, the term. If so, and if any weight whatever was given by the jury to the expression, it is improbable that greater force was given than was otherwise apparent. From .the evident vigor and ability displayed by counsel for appellant and from what otherwise appeared throughout the course of the trial, it must have been obvious to the jury that appellant was exerting every effort to defeat appellee’s claim. Moreover, the court, in approving the bill, certifies that “at the conclusion of counsel’s speech the court instructed the jury not to consider the above statement.” Under such circumstances, we cannot think it our duty to reverse the judgment on the ground thus urged. See American Freehold Band Mortgage Co. v. Brown, 118 S. W. 1106, 54 Tex. Civ. App. 448; Davis v. Kennedy (Tex. Civ. App.) 245 S. W. 259; Uvalde Co. v. O’Brien (Tex. Civ. App.) 265 S. W. 1083; Gulf, H. & S. A. Ry. Co. v. Henry (Tex. Civ. App.) 252 S. W. 213; Houston & T. C. Ry. Co. v. Alexander (Tex. Civ. App.) 121 S. W. 602; Fordtran v. Stowers, 113 S. W. 631, 52 Tex. Civ. App. 226; S. A. U. & G. Ry. Co. v. Storey (Tex. Civ. App.) 172 S. W. 188; Jones v. Wright (Tex. Civ. App.) 92 S. W. 1010; Debes v. Greenstone (Tex. Civ. App.) 260 S. W. 211; Employers’ Ins. Ass’n v. Herring (Tex. Civ. App.) 269 S. W. 249.
We,conclude that the motion for rehearing should be overruled.