H. H. HOUSEMAN, Petitioner, v. Paul DE CUIR, Respondent, 283 S.W.2d 732

GARWOOD, Justice. DecuirOur petitioner, H. H. Houseman, defendant in the trial court, suffered an adverse judgment there, in a trespass to try title action, which has been affirmed by the Court of Civil Appeals 281 S.W.2d 103. His petition here presents the single question of improper jury argument of counsel for our respondent Decuir (plaintiff below) on the issue of the latter’s title under the ten-year statute of limitations, Vernon’s Ann. Civ.St. art. 5510, which was the only title he asserted.

The petitioner-defendant proved up good record title to the approximately 80 acres of land in suit which was located within the city limits of Vidor in Orange County, having acquired it in 1950 by devise from one Stanford (“Pug”) Ward, a resident of the same area, who had in turn inherited it in 1937 from his wife, Nora Lee Ward, who had bought it in 1926 from the then record owner.

The respondent-plaintiff, prior to the period of his alleged adverse possession (1932-45) had acquired by deed and lived upon a ten-acre tract adjoining the larger tract in dispute, but as to the latter, he in effect admitted to have consciously trespassed upon it, or in his own words, “homesteaded” it, for the purpose of acquiring limitation title to it.

While he undoubtedly adduced evidence of having told sundry witnesses that the land was his and done other acts indicative of a claim of ownership, he never sought to render the property for taxation or paid taxes on it, although paying taxes during the same period on all nearby property which he held by deed. Moreover, he did not bring this suit until 1952, or several years after the death of the Wards, who were his neighbors and acquaintances, and several years after he' had moved away from the community and ceased to exercise any acts of dominion over the land.

His case on use and possession was based on his own testimony, corroborated in greater or less degree by several witnesses from the immediate area called by him, to the effect that he had employed-the land, which was, in substantial part, woodland, for pasturage of cattle and horses, had built fences in those parts of the boundaries where fence gaps existed and had kept all fences in repair, leaving the line between the disputed tract and his adjoining tract unfenced so as to have a common enclosure.

The important parts of this proof were sharply contradicted by witnesses for the petitioner-defendant, Houseman, one of whom also testified to a conversation between the respondent-plaintiff and the Wards, whereby the latter gave, and the former accepted, permission to use the land and fix up the fences for this purpose. In the course of the testimony for the petitioner-defendant, the witness, J. M.

Ball, testified on cross-examination in response to a question of whether he knew the petitioner-defendant’s devisor, Stanford Ward, “No, he was never sober enough.” This and a small item of testimony to the effect that Ward had no regular means of employment is about all there was in the record .concerning Ward, except the below-mentioned documentary evidence. In the chain of title introduced by the petitioner-defendant were included the Ward will containing the words, “I give, bequeath and devise to Mr. H. H.

Houseman”, and also a final judgment in favor of the petitioner-defendant rendered in the latter part of 1950 in a contest of the will brought by one Voltaire Ward on the grounds of testamentary incapacity and undue influence on the testator by the petitioner-defendant. The judgment reflected a jury verdict in favor of the petitioner-defendant on the matter of testamentary capacity, and an evident disagreement on the issue of undue influence, as well as the holding to the effect that no competent evidence of undue influence had been presented.

The validity of the judgment or of the will was not in question nor did the judgment give any details of the proof introduced in the will contest.

As disclosed by the bill of exception, which is the basis of the petitioner-defendant’s position in the instant case, his counsel in argument apparently referred to “silent witnesses that couldn’t be here to testify” on behalf of the petitioner-defendant, after which the following argument for the respondent-plaintiff and related proceedings occurred: “ ‘Gentlemen, Judge Hustmyre said something about the silent witnesses that couldn’t be here to testify in their behalf. He was talking about Mr. and Mrs. Ward.

No', they couldn’t be here and testify in their behalf and neither could they be here and testify in our behalf. “ ‘It has been admitted in this record that H. H. Houseman got this property under a will. He never paid five cents for it. It is in this record, and yet when Mr. Ball came out there to talk to Stanford Ward, he said he was so drunk he couldn’t do business with him, yet Mr. Ward makes a will to this Mr. Houseman, willing him the land. It didn’t cost him one five cents.’ “Whereupon, Frank W. Hustmyre, Attorney for Defendant, H. H.

Houseman, made the following objection to the Court: “‘I object to that kind of speech. The Will speaks for itself and it is not in the record as to whether or not anything was paid for the will.’ “Whereupon, the Court gave the following instruction: “ ‘Gentlemen, (addressing the jury) you will disregard the remarks of Mr. Sexton about the land not costing Mr. Houseman one five cents. You will disregard any statement made by counsel with reference to that.” “Whereupon, the said W. P. Sexton immediately made the following statement to the jury: “ ‘The will is simply this — it is in the record.

It says that I, Stanford Ward, do hearby devise, bequeath and give to H. H. Houseman all of my property. That is the exact language in the will and it is introduced in this record and I challenge anyone to say it is not in this record.’ ” The statements that the petitioner-defendant got his title without cost by devise from an inebriate were, in our opinion, wholly improper, as evidently both courts below agree that they were. The subject matter of each statement was, indeed, “in the record” to the extent we have indicated above.

But it had no legitimate bearing on the one and only title issue before the jury, to wit, whether the respondent-plaintiff had fulfilled the requirements of the limitation statute. It was thus essentially the same as if outside the record so far as concerns the propriety of argument on the limitation issue. Certainly there was not in the record any evidence that the petitioner-defendant took advantage of an alcoholic or drunken person to acquire property from him by will, which the argument obviously implied that he did.

The record of the judgment in the will contest in favor of the petitioner-defendant made no reference to even an unsuccessful contention to this effect against him. The implication of the argument was obvious, because the reference to Ward’s weakness could have been intended for no other purpose. It was part and parcel of the statement as to how the petitioner-defendant acquired the land from Ward, and thus plainly not a reference to whether Ward would have been sober enough to testify, if he had been a real instead of “silent” witness.

To argue that the petitioner-defendant got the land without it costing him “one five cents” was improper, but to add in the same sentence that he thus got it from a drunkard multiplied the impropriety. The argument ■ thus combines both the evils of introducing purported evidence not in the record and appeals to passion and prejudice. See Texas Employers’ Ins. Ass’n v. Haywood, Tex., 266 S.W.2d 856, and cases there cited.

On the inflammatory side, we see no great difference between the argument inferentially accusing the petitioner-defendant of taking advantage of the bounty of an alcoholic and argument of the type condemned in Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115. True, the objection made to the argument was in part general and, in the specific part, did not expressly point out the inference last mentioned. However, the latter was so enmeshed with the idea of the petitioner-defendant having got the property for nothing from Ward that pointing out the one idea was in effect to point out both.

This Court has not taken the position that objections to arguments shall be as exact as objections to evidence. Since the inference in question was plainly made with deliberation, it was not an oversight of which arguing counsel had a right to be reminded —with the incidental result of further emphasizing it to the jury even when purporting to retract it. The serious question is as to the effect of the court’s instruction to disregard the argument. In the Dickson case, supra, we held some of the improper argument there in question “not to have been cured” by an instruction. 236 S.W.2d 115, 120.

In Texas Employers’ Ins. Ass’n v. Haywood, supra, in reversing for argument invoking race prejudice against particular witnesses (whose race was, of course, already known to the jury, which had seen and heard them) we held that the “harmfulness” of the argument “could not have been eliminated by either retraction or instruction or both”, and that thus the failure of the aggrieved party to object or raise the point until filing his amended motion for new trial was not material.

One might argue with some force that if a juror would conclude to disbelieve a witness simply because of what counsel said about his obvious race, so would he conclude to favor a limitation claimant as against the record title owner because of counsel’s clear inference that the latter was morally not entitled to keep his land, having acquired title to it by unmoral means and at no expense. In this connection, because of the necessarily simple character of the jury submission, the jury could easily have known how to favor a particular side by its verdict.

But be this as it may, we think that on the bill of exception as a whole, the case is substantially the same as if no instruction to the jury had been given, or even as if the objection had been overruled. Immediately following the instruction, counsel for the respondent-plaintiff in effect repeated his argument by vigorously insisting to the jury that what he had said was in fact in the record. The judge took no action, despite the objection having been made and sustained only seconds before on the same point.

Under the circumstances, counsel for the petitioner-defendant could hardly be expected to urge the judge to repeat or enforce his own ruling and did not do so. A probable inference for the jury thus was that the court thought his own instruction of doubtful merit and the argument of some bearing on the limitation issue. We think the record also reflects that the argument “was reasonably calculated to cause and probably did cause the rendition of an improper judgment”. Rules 434 and 503, Texas Rules Civ.Proc.

On the whole record, the case being a strongly contested and strictly factual dispute, depending in much part upon the testimony of the respondent-plaintiff himself, we think the jury probably was influenced by the improper argument, which by its very nature was “reasonably calculated” to produce such influence., The refusal of the Court of Civil Appeals to reverse on the point that the verdict was against the overwhelming weight and preponderance of the evidence means, not that the petitioner-defendant failed to have the better case on the evidence, which we think the record reflects that he did have, but only that the weight and preponderance, if any, in his favor was not of the unusually high degree required for overturning a verdict based on conflicting evidence.

In fact the court said [281 S.W.2d 104] that the question of whether the verdict was not “clearly verong” or "a manifest injustice” was “not an easy one to solve”, or in other words, that the verdict probably was against the weight and preponderance of the evidence, although not strongly enough against it to meet the requirements for a reversal on that score. The power of this Court to consider the preponderance of the evidence in connection with the question of probable prejudice from improper argument is recognized in Lumbermen’s Lloyds v.

Loper, Tex., 269 S.W.2d 367, 370, 371, and is there distinguished from our power, or lack of it, as to overturning fact findings as being against the great weight and preponderance of the evidence. The judgment of both courts below is reversed and the cause is remanded for a new trial. GRIFFIN, BREWSTER, CALVERT and WALKER, JJ., dissenting.