Gulf, Colorado & Santa Fe Railway Co. v. Butcher , 83 Tex. 309 ( 1892 )

We think that the language and conduct of counsel for the plaintiff in his closing address to the jury, as disclosed by the bill of exceptions noted in the preceding statement of the case, was highly improper and well calculated to divert the minds of the jurors from the real issues in the case, and to influence their feelings to passion's heat and thus prejudice them against the defendant and prevent a deliberate exercise of rational judgment. In such case, if there is a reasonable doubt, in view of the evidence, of the correctness of the verdict, and a strong probability that it would not have been so large in amount but for the use of improper and inflammatory language by counsel, it then becomes reasonably apparent that the conduct of counsel in this particular did materially influence the action of the jury, and by methods not consistent with a fair and impartial trial, and therefore the verdict ought to be set aside and a new trial granted. Railway v. Garcia, 62 Tex. 289, and cases cited; Railway v. Cooper,70 Tex. 67; Railway v. Jones, 73 Tex. 232 [73 Tex. 232]; Moss v. Sanger, 75 Tex. 321. What counsel did say in his address, as shown by bill of exceptions, though somewhat vehement, might not have been inappropriate if it had been addressed to the court originally in opposition to the granting of the defendant's application of the appointment of the committee of physicians to examine the plaintiff's wife. There is nothing, however, in the record to show that any opposition was made by plaintiff or his counsel to the application being granted, nor was the evidence of the physicians who made the examination objected to on the ground that the order appointing them had been made without authority of law. It seems, therefore, that this order, as well as the examination of the wife, was made without opposition or protest from any one. Certainly the parties with the acquiescence of the wife could have caused the examination to be made by mutual consent and with the sanction of the court. But we are not, under such circumstances, required to decide whether the court was invested by law with the right to appoint the committee or compel the plaintiff's wife to submit to the examination. The writer of this opinion very much doubts the existence of the power of compulsion in such cases, or to enforce the examination of the person of an individual without his or her consent, the effect of which would be, where the person to be examined is a female, to authorize the physicians to commit acts which otherwise would amount to an aggravated assault. The constitutional guaranty may be inconsistent with the exercise of the power, and we do not understand that the Supreme Court has yet determined this question. Bill of Rights, sec. 9; Page v. Page, 51 Mich. 91; Railway v. Johnson, 72 Tex. 95; Railway v. Underwood, 64 Tex. 463.

But in the present instance the proceedings in this particular must be regarded as in every respect regular as the matter is presented to us, and counsel in addressing the jury had no right to challenge their legality, but ought to have respected the previous orders of the court. If dissatisfied therewith, he might have excepted to the action when taken (if he did not consent to it), and thus have reserved the point for revision in a higher tribunal. But to indirectly defy the authority of the court and denounce its order or decision as "an outrage" in its very presence, are not among the privileges of counsel as guaranteed by law. The order of the court and the subsequent examination made thereunder not appearing to have been in anywise irregular, the line of argument pursued by counsel was not permissible to impeach the testimony of the examining physicians or to diminish the weight that might be attached to it by the jury. In fact, the legality of the order or the examination under the circumstances was immaterial and not a subject for discussion before the jury. In going beyond the issues of fact in the case by denouncing the order of the court and its procurement by the defendant as illegal and an outrage, the counsel not only trespassed upon the dignity of the court, but in effect accused the defendant of having unlawfully procured by means of the examination the desecration of plaintiff's home and fireside idols and the commission of a rude, if not indecent, assault upon a loving wife and mother. If this picture were real, still it could not increase the original injuries. The fact that this oratorical display of counsel approaches the eloquent simply increases the probability of undue influence upon the jury, and consequent injury to the defendant. If the cause of his client was fortified by the facts in evidence (and we do not hold that it was not), then he did not need this appeal to the jury to obtain a just verdict from them. We can not regard the explanation as given by the court as sufficient to remove the vice in the language as used by counsel. The defendant's counsel certainly had the right to discuss the evidence adduced in relation to the extent of the injuries received by the wife, as well as the motives of those witnesses who were interested in the results of the suit, and it does not appear that in doing this they departed from the record or the line of legitimate argument upon the case as it stood before the jury. What they had said upon the subject did not call for, much less justify, the retort of opposing counsel.

Ordinarily the error of counsel can not be magnified into an error of the court; but when the court refuses to restrain counsel after its protection has been duly invoked, then the error of counsel becomes an error of the court. In view of the uncertainty arising under the evidence as to the real extent and character of the injuries sustained by the wife, and the probability that the improper remarks of counsel for the plaintiff influenced the action of the jury, we think that on account of the error of the court in not excluding this matter distinctly and positively from the consideration of the jury, as it should have done, the judgment should be reversed and a new trial granted. The court did not restrain counsel at all, as will be seen from the bill of exceptions, but gave at least a tacit approval in the presence of the jury.

We will add that, in our opinion, the charge of the court was substantially correct, except that defendant was only bound to have its platform, etc., reasonably safe, and that there was no error in refusing to allow the second special instruction as requested by the defendant. This charge would have instructed the jury that the defendant was only bound to the exercise of ordinary care toward the plaintiff's wife, who was one of its passengers. In regard to those things which the carrier is required to provide to secure the safety of the passenger, we understand that it is bound to use that high degree of care which a very prudent person would have used in his own business under the same circumstances. Hutch. on Carr., secs. 506, 521. The defendant was not bound to have its platform absolutely safe, but only reasonably so under the circumstances, yet in accomplishing this result it was bound to use more than ordinary care and precaution. Railway v. Halloren, 53 Tex. 53 [53 Tex. 53]; Railway v. Gorbett, 49 Tex. 580. For the error indicated, we conclude that the judgment should be reversed and the cause remanded.

Reversed and remanded.

Adopted February 9, 1892.