On Motion for Rehearing.
After careful consideration of appellant’s motion for a rehearing we have reached the conclusion that we were in error in overruling appellant’s point No. 17, which complained of the error of the trial court in refusing to grant the appellant a new trial in this cause because of the argument and statements made by one of the attorneys representing appellees in making the closing argument in the trial of the case, the point being in substance that the attorney was entirely out of the record in the cause and stated to the jury that Claude Thomas, the president of appellant company, and who had been present in the court room throughout the trial of the cause, had sought to tamper with one of the jurors, to-wit, Mr. Jack Cockrell, thereby attempting to intimidate and did intimidate the juror Jack Cockrell against returning a verdict in favor of appellant, and thereby destroyed the free agency and independence and thought of said juror, and thereby directly coerced and sought to and did compel the said Cockrell to vote to return a verdict in this cause in favor of appellees, which was actually returned by the jury. We originally overruled this point for the reason that we believe the rule should be that a party should not for the first time be heard to complain of improper argument in its motion for new trial when no objections had been made thereto nor any motion for a mistrial to be entered. We are still of the opinion that such a rule is supported by sound reason. However, it is not in accord with the rule announced by the Supreme Court in such cases as Ramirez v. Acker, et al., 134 Tex. 647, 138 S.W.2d 1054, wherein, the Supreme Court undertakes to set out the rules governing when an objection by-the complaining party should or should', not be made to improper argument before he would be entitled to a reversal of the cause. We are convinced that the argument here complained of was such that the harmful effects thereof could not have-been cured by an instruction from the court (if in truth it is ever possible so to-do). Therefore, under the apparently well established rule of the Supreme Court of this state the appellant was permitted to. sit by without registering any complaint;, take his chances on a favorable verdict and when disappointed raise the point for the first time in a motion for a new trial. The argument here complained of was as follows:
“But, this is a serious matter, Gentlemen, both to Airline Motor Coaches, Incorporated, and Gloria Howell, and, not to Claude Thomas — Claude Thomas is connected with Airline Motor Coaches just like J. W. Richards is Texas Long Leaf,, he is the President of it. And they try to flaunt Claude here because he has kin. folks on the Jury, and other people sitting around here; and, Gentlemen of the Jury, nobody on our side of the case has any kin folks to any juror who would spend the night with him and ride down here. If it has happened on the other side of the case, Gentlemen of the Jury, I have: *721confidence enough in the men on the Jury that it wMl not affect you — I don’t approve of that, and I don’t think you do. If it has happened, Gentlemen of the Jury, it is not Gloria Howell’s fault, it is not her father’s fault; it is not her mother’s fault, and it is not my, or Fox Campbell’s or Ed Smith’s fault. And, I still believe, Gentlemen of the Jury, that the twelve men on this Jury — and I know every one of you, except the young man sitting over there— and I believe the twelve men sitting on this Jury will go into that Jury Room up there and treat Gloria Howell just like the bus company, even though, Gentlemen, you have a bus agent sitting here on the jury, a hired hand of Mr. Thomas, if you want to call it that — Airline Motor Coaches; we took him on there, too. He is working for him, and he is kin to me. But, Gentlemen of the Jury, if Claude Thomas, or any other person, I don’t care where he came from or what he looks like, if he did get up to you that way, or try to— because I know he can’t do it — if he did try to get up to you, if they do that, Gentlemen of the Jury, they would steal a nickle off a dead man’s eye — and that’s the truth too. I would like to talk to every man on this Jury after you come out of here and are turned loose, and I will talk to you, separate or together — and let me do it — and I will prove to you what I am saying if you let me do it. I am tired of this kind of stuff; I am getting enough of it, and if I can stop it, I am going to. I will talk to you personally and tell you about it after it is over.”
The record in the case reveals that the juror Jack Cockrell was related to Mr. Claude Thomas, who was the president of the defendant company, and that the remarks made by said attorney were directed at the juror Cockrell. Under such state of facts, any effort on the part of said juror to make any contention favorable to appellant would have a tendency to place him in the light before his fellow jurors of having been “tampered” with or “got to” by the “kin folks” of said Thomas.
The trial court in its order overruling appellant’s motion for a new trial found as a fact that the argument complained of was fully justified by the conduct of Mr. Wallace, the father-in-law of one of the jurors (Jack Cockrell), who had been carried to the home of said juror by a brother-in-law of C. D. Thomas and accompanied him to court.
The only justification for such argument and finding by the trial court arose in a rather unusual manner. Near the end of the evidence in the trial of this cause, one of the attorneys for appellees requested the trial court to retire the jury, whereupon Mr. J. R. Wallace was called to the witness stand and in the absence of the jury gave the following testimony:
“Q. What is your name, please sir? A. J. R. Wallace.
“Q. Where do you live, Mr. Wallace? A. Chester, Texas — in the neighborhood of Chester.
“Q. How long have you been in Livingston this week? A. This is the first time I have been here.
“Q. When did you come here? A. This morning.
“Q. How did you get down here? A. I came with Mr. Cockrell.
“Q. What Cockrell? A. Jack Cock-rell.
“Q. He is on this Jury too, isn’t he? A. I suppose he is.
“Q. You have a boy working for the Beaumont-Lufkin-Beaumont Motor Coaches, don’t you? A. Working for who?
“Q. One of these bus companies up here? A. Yes sir.
“Q. What is his name? A. George Wallace.
“Q. How long has he been working for them? A. I can’t remember.
“Q. I will ask you during the noon hour if you weren’t off in a private conversation with Mr. John Dillon, and didn’t I come up and ask you where you lived, and you said Chester? A. I said I still lived at Chester.
“Q. Were you talking to Mr. John Dillon in a private conversation? A. Any fellow down. * * *
*722“Q. Answer that question: were you talking to Mr. John Dillon in a private conversation? A. He was standing there.
“Q. Weren’t you talking to him ? — And, you know Mr. Quattlebaum standing outside, out there?
“(Mr. Quattlebaum was called inside the Court Room)
“Q. (continuing) You know that man, Mr. Wallace? A. Which man?
“Q. The man there: Robert Quattle-baum. Do you know him ? A. I met him since I have been here today.
“Mr. Foreman: Thank you, Mr. Quattle-baum, you can stand outside now. (Whereupon, Mr. Quattlebaum retired from the Court Room).
“Q. (continuing) Now, just a few minutes ago, when we asked the Court for permission to examine this purported log, when we walked back in the office there, if you, after having talked to John Dillon, weren’t in that office talking privately to Mr. Quattlebaum? A. Me and him was in there.
“Q. Just you two? A. Yes sir, I was.
“Q. How did you come down here? You said you brought Jack Cockrell? A. I come with him.
“Q. How did you come? A. We come in Jack Cockrell’s sister’s car.
“Q. Who else came? A. Nobody but us.
“Q. Where did you stay last night? A. At Mr. Jade Cockrell’s.
“Q. Did you talk about this case? A. No sir.
“Q. Who did you marry? A. Miss Alice Richardson.
“Q. Where was she from? A. Raised over there in the neighborhood of Chester.
“Q. You didn’t know Mr. Quattlebaum works for Airline Motor Coaches? A. I didn’t know it until I met him out there this morning.
“Mr. Foreman: I don’t know what to do about a situation like this: this man staying all night with a Juror; lives at Chester and rides down here with him from Corrigan, and by his own admission down stairs a few minutes ago talking to John Dillon and then a few minutes ago talking to a representative of this bus company, Robert Quattlebaum, in the courthouse.
“Mr. Lewright: Judge, if there is anything improper about it, I don’t know anything about it. If they can develop they talked about the case — -But it is utterly ridiculous to indict a man because he was speaking with a man out here and * * *
“The Court: We will go ahead with the case.
“Q. (Mr. Campbell) Didn’t you say your wife was who? A. Richardson.
“(Questions by Mr. Foreman)
“Q. What is your boy’s name that works for the bus company? A. I told you a while ago his name was George Wallace.
“Q. Who does he work for? A. Airline Bus Company.
“Q. Working for C. D. Thomas of Airline Motor Coaches? A. I know it is Airline Bus Company.
“Q. Who else came down here with you and the juror, Jack Cockrell, except you two this morning? A. Do how?
“Q. Who else came down here with you and Jack Cockrell except you two this morning? A. I don’t know her name, but Jack Cockrell’s baby sister — Miss Stacey I think her name is.
“Q. Who got you to come down here? A. Nobody.
“Q. What did you come down here for? A. To meet the boys here.
“Q. Who did you come to meet? A. My old acquaintances.
“Q. Who are some of them? A. There is one there: Mr. Feagin.
“Q. You have been to his office? A. No sir.
“Q. Have you been to his home? A. No sir.
“Q. Did you know he was in this case when you come down here? A. I didn’t know this case was on until yesterday evening.
“Q. Who did you come to meet? A, I come here to meet you the same as anybody else.
*723“Q. You haven’t met me, have you? A. I have been talking to you, and you didn’t know me over there this morning.
“Q. I did know you. A. You didn’t let on like you did.
“Q. But I knew you, and I have known you all my life, and I knew your boy worked for the bus company too. A. Yes sir.
“Q. How did you get from home to Corrigan? A. I come from Chester to Corrigan; my wife is in bad health, and we come over to my son’s at Chester and stayed two nights.
“Q. How did you get from Chester to Corrigan? A. A man by the name of Henry Seaman took me and my wife.
“Q. C. D. Thomas married a Seaman? A. Yes sir, but Mr. Seaman didn’t know anything about this and I didn’t either.
“Q. Was that her father you came with? A. Her oldest brother.
“Q. Did you mention the case? A. I didn’t know anything about it, and I didn’t.
“Q. You say your wife is sick? A. She is in ill health — able to walk around.
“Q. Who is with her now? A. Mrs. Cockrell.
“Q. Mrs. Cockrell is with her now? A. Yes sir.
“Q. Are you kin to Jack Cockrell? A. He married my daughter.
“Mr. Foreman: You have a relative of Claude Thomas bringing him from home to Corrigan, and him staying and sleeping with a juror, Mr. Cockrell, who married the man’s daughter.
“A. I have a right to go to see my daughter.
“The Court: I don’t see anything in this at the present time — the status of it. You just be careful, Mr. Wallace.
“A. Yes sir.”
We believe that the argument complained of finds no support in the evidence, especially that part of the evidence that went to the jury, and that in addition to the harmful effects of placing the juror in an embarrassing position and thereby limiting his freedom of action that it had the effect of creating a prejudice in the minds of each and all of the jurors against the appellant and would likely lead to the jury making an effort to condemn such unworthy conduct by assessing damages at more than they otherwise might have, and could very well have been considered by the jury as a confession on the part of the appellant that its agents had been guilty of negligence and that appellees had suffered serious damages as the result thereof for the reason that otherwise they would not have, in the usual course of human conduct, gone to such an extent in an effort to defeat appellees’ cause of action. Such argument being entirely out of the record and the natural result thereof being harmful to the appellant, and as we feel that any instruction from the court would have been wholly inadequate to remove the harmful effect thereof, we have concluded that the argument was such as to require a reversal of this cause. 41 Tex.Jur. 774, and cases there cited; Turpin v. Commonwealth, 140 Ky. 294, 130 S.W. 1086, 30 L.R.A.,N.S., 794, 140 Am. St.Rep. 378; City of Austin v. Howard, Tex.Civ.App., 158 S.W.2d 556; Airline Motor Coaches, Inc., v. Bennett et al., Tex. Sup., 187 S.W.2d 982.
Appellant assails our conclusion in this case to the effect that its affirmative defensive issues were adequately submitted by the trial court wherein we held in substance that the issue submitting the issue of unavoidable accident was sufficient to and did submit each and all of the issues of fact relied on by appellant as constituting the sole proximate cause of the collision in question, and cites the opinion of the Supreme Court in the case of Schuhmacher & Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951, wherein the Supreme Court took occasion to say they were not in agreement with the principles announced by the Court of Civil Appeals in that case, which in substance is the identical principle announced by us in our original opinion. It was not necessary for the court to pass upon the point in Schuh-macher v. Holcomb, and we are constrained to believe that had it been they would have given the matter more serious consideration. The reason given by the court for *724its disapproval of the principle announced by the Court of Civil Appeals in the Schuh-macher case do not appear in this record. There can be no doubt that the trial court should have given a charge in that case on the issue of sole proximate cause in addition to his charge of unavoidable accident for the reason that the third party whose acts were relied on as being the sole proximate cause of the injuries to one of the parties was also a party plaintiff to the suit, and, therefore the defendant was entitled to the issue of unavoidable accident as applied to one of the plaintiffs, and proper issues of the sole proximate cause as applied to the other plaintiff. In the present case, had either or all of the acts plead as being the sole proximate cause been found favorable to appellant it would necessarily have been an unavoidable accident as between appellant and appellee as then it would have happened without being caused by the negligence of either party. We are still of the opinion that where a defendant in a suit, where the facts are as here presented, plead the defense of unavoidable accident and at the same time pleads the acts of .a third party as being the sole proximate cause of the accident, and the only evidence in the case in support of a finding that it was an unavoidable accident is the identical evidence which raises the issues of the acts of a third person as being the sole proximate cause, and requests the court to submit the defense of unavoidable accident, that the court is justified in granting such request and in refusing to again submit the same facts as a defense under the theory that they constituted the sole proximate cause.
Appellant also complains of our remarks concerning the necessity for the motion for a new trial to show in some manner that the argument complained of was not justified by the evidence nor in response to arguments made by the opposing counsel. Such statement was not necessary to the conclusion reached and is hereby withdrawn.
Having concluded that we were in error in overruling appellant’s point No. 17, appellant’s motion for rehearing is granted and our judgment affirming this cause is set aside and the same is reversed and remanded for a new trial.