SOUTHERN PACIFIC COMPANY, Petitioner, v. Price M. HUBBARD, Respondent, 297 S.W.2d 120

McCALL, Justice. This is a suit by an employee against a railroad under the Federal Employers’ Liability Act to recover damages for personal injuries. The only issue on appeal concerns improper argument to the trial jury made by the attorney for the employee. Price M. Hubbard, respondent, was a mechanic boilermaker employed by the Southern Pacific Company, ■ petitioner, in its maintenance department at El Paso, Texas. He had worked as a boilermaker for the railroad company for sixteen years.

In 1941 he sustained a back injury which caused him severe pain until he submitted to an operation in 1943 to fuse the last two joints in his spine. This surgical fusion of the fourth and fifth lumbar segments to the sacrum proved successful and he resumed “light work” for the railroad a few months later. The back continued to give him trouble and he received treatment therefor, including the wearing of a brace, until 1946. Thereafter he resumed his full duties and there is no further evidence of treatment or disability from this injury.

In 1953 the railroad was converting to diesel engines, which have no boilers, and was therefore laying off a number of boilermakers each week, those with the lowest seniority being laid off each week. Hubbard was laid off in this process on December 14, 1953. About two months after being laid off he filed suit for an injury he had sustained on December 7, 1953. He first filed suit in California but dismissed the suit there and refiled in Texas. Hubbard himself was the only witness at the trial who testified as to the accident, but another boilermaker, H. A.

Wagner, testified as to circumstances surrounding the accident though he did not actually see Hubbard fall. Wagner was laid off by the railroad about a month after Hubbard and at the time of the trial worked for the Texas Company. Hubbard testified that the accident occurred in the following manner: At the end of the work day a number of boilermakers were returning their welding tools to the tool room. These tools, consisting of welding equipment and drums of acetylene and oxygen, weighed several hundred pounds, and were loaded on two-wheel pushcarts.

The boilermakers were proceeding in a line down a walkway in the boiler shop, each pushing his tool cart. Hubbard was followed by another boilermaker, M. S. Aguilar, who in turn was followed by Wagner. Aguilar slipped on a wet spot on the concrete floor and released the handles of his cart. The cart dropped forward onto its base, and in doing so fell upon Hubbard’s heel. He fell to the floor and grabbed his heel in pain. Wagner did not see the accident but came up in time to hear Aguilar explain that he had slipped and apologize for bumping Hubbard’s heel.

Wagner put up Hubbard’s tool cart and then returned to help Hubbard to his feet. He supported Hubbard as the latter limped to the time clock to check out. Next day, December 8th, Hubbard went to a doctor for treatment of the injury to his heel. There is no record of any complaint about his back. On December 9, 1953, Hubbard returned to the shop and made a written report of the accident, stating therein that he had injured the heel on his right foot. No injury to his back was mentioned in the report. Among other matters he also reported that the day was clear and that it was not raining or snowing.

The report was witnessed by Wagner, who was Chairman of the Union Grievance Committee, and several other railroad employees. Aguilar was listed as the only witness to the accident. On December 11th Hubbard returned to the doctor for further treatment and on this occasion complained not only of his heeP but also of pain in his lower back. At the trial Hubbard testified that he had fallen on his “tail bone” and thus injured his back as well as his heel. Hubbard' testified that as he leaned forward pushing his heavy cart, Aguilar’s cart dropped' on his right heel as it protruded behind’ him.

Counsel for the railroad attempted to show by cross-examination of Hubbard; that being thus tripped as he walked leaning forward he would have fallen forward' and not backward upon his “tail bone.”' Hubbard also testified it was raining or snowing the day of the accident and the roof of the shop leaked and caused the wet. places on which Aguilar slipped. Wagner testified the day was clear but stated, that there was a wet spot on the floor from-the leaking roof. Aguilar did not testify.

The record shows that Hubbard’s attorney caused a subpoena to be served’ upon Aguilar and he was in attendance-on the court throughout the trial, but was-not called as a witness. Hubbard testified; that his attorney had told him that before the trial Aguilar had been ordered to-see the attorney for the railroad. The railroad introduced evidence from-the Federal Weather Bureau records that the day was clear and the last precipitation-had been .02 of an inch on December 5th.

The jury found that Aguilar was negligent-in running into Hubbard, and that the railroad allowed the roof to leak and was-thereby negligent in failing to furnish Hubbard a safe place to work. There was much, conflicting medical testimony concerning whether Hubbard was disabled or not, and whether any disability he might have was due to the accident on December 7, 1953 or to the old hack injury of 1941. The jury awarded Hubbard $17,000. The judgment of the trial court for this amount has been affirmed by the Court of Civil Appeals, 290 S.W.2d 547.

The railroad complains of the following statements to the jury by Hubbard’s attorney in his opening argument: “And so Wagner comes up, having been some twenty or twenty-five paces ■behind and seeing Aguilar right behind Hubbard, but having for the moment evidently looked away for some reason, and not seen him.

I would to God that he had seen him because he is not working for this company and ■could come here unafraid and tell us the facts about it if he had just seen -it * * * ****** “ * * * and if there was any ■doubt about it, they would have had Aguilar, who pushed this cart into Hubbard, and if there was any doubt .about it, they would have one or a dozen or twenty-five other people who were down there * * *. ****** “He’s down at Goodwill Industries part of the time with a bunch of cripples, epileptics and so on, a charitable organization.

And I say that is a •charitable organization that is not formed here to assume the obligations of the Southern Pacific Company. I say let that place be taken by somebody who was not hurt by the Southern Pacific Company. The people of this community don’t maintain that for the benefit of the Southern Pacific Company, and Hubbard should be out of there and the place taken by someone who has no recourse * * *. ****** “Of course, according to them, anybody that sues the railroad for injuries and their wife and anybody that says ‘good morning’ to ’em is probably a thief and a liar, but you saw Mrs.

Hubbard here and you saw the other people here and you saw Hubbard here * * The railroad also complains of the following statements in the closing argument of Hubbard’s attorney: “Yes, I could have put Aguilar on the stand if I had wanted to vouch for him after he had been up there talking to the attorney and claim agent for this railroad, with which he is employed and would like to hold his job. And Oh, the wrong that I do in even suggesting that this railroad might punish a man for coming in.

The testimony shows that instead of subpoenaing the next door neighbor the week before so he could be talked to * * * j wasn’t born yesterday * * * I subpoenaed him at two o’clock to come here at 3:30, while they were here, and so he comes in and you heard him. He told the truth about it, and I wonder what will happen to him. I hope nothing.” (The above comment referred to a witness, E. L. Bennett, who also was an employee of the railroad and who lived next door to Hubbard.

Bennett testified to Hubbard’s disability.) “And then when I know that Aguilar is out there and they have talked to him and they have the strings on him, he has got a job that undoubtedly he wants to hold, or he wouldn’t be there, and they talk about why I didn’t put him on the stand and vouch for him. ****** “ * * * ancj eyidence ⅛ this case is that last Thursday, I, on behalf of Hubbard, subpoenaed that man to be here, and the evidence is, and as Mr.

White said, certainly I wouldn’t have done that unless I had a pretty good idea that he not only knew about the witness * * * about this accident * * * but would tell the truth about it, and the evidence is that when I was out there Sunday afternoon that he got his orders to appear up with Mr. White and Mr. King on Monday morning, and then we know that he was out there in the hall and he was available if I wanted to talk to him and to find out if there had been any change since he saw those two gentlemen. Oh, this Lily-white railroad ! Oh, aren’t we anointed! We represent the railroad!

And so he was here for me to see and to find out. No, when we put the witness on the stand we vouch for him, and on Monday morning and Tuesday and today I can’t vouch for Mr. Aguilar. * * * * * * “ ‘Second choice’ they say you are to this man, where this man is concerned. Give him a fair trial? Do they want this man to have a fair trial?

Yes, that does make me a little sore. ‡ ‡ ‡ ‡ ‡ ‡ “Well, when I see this man and know him well, they come in and say because, in common with dozens of others, that anybody who sues this railroad is something less than honorable, can’t tell the truth, and they lie, and anybody else that comes in, even under subpoena of the Court, if they dare say anything in our favor, they are not telling the truth.

And that is calculated to provoke a person.” The railroad contends that by these arguments Hubbard’s attorney accused the railroad officials and attorneys of intimidating the railroad employees by threats to fire them so that they were afraid to testify to facts favorable to Hubbard. Specifically Hubbard’s attorney argued that the railroad had intimidated Aguilar so that he changed his story and was afraid to tell the truth for Hubbard. He also argued that it was necessary to summon E. L.

Bennett, a railroad employee, during the trial so that the railroad attorneys would have no opportunity to influence him and that Bennett might be punished for his testimony. Hubbard’s attorney also argued that if Wagner had seen the accident he would have told the truth about the matter since he was not subject to intimidation, being no longer a railroad employee.

The railroad also complains that Hubbard’s attorney in his opening argument commented upon the failure of the railroad to call Aguilar as a witness, when Aguilar had been summoned by Hubbard and was present in the courthouse and therefore as available to Hubbard as the railroad. By such comment Hubbard’s attorney inferred that Aguilar would, if called, have testified for Hubbard.

Petitioner also complains that the other quoted statements attack the integrity of officials and counsel of the railroad and appeal to the passion and prejudice of the jury, and that such statements are not warranted by any evidence in the record nor in reasonable response to any statement made at any time by the railroad’s attorney. We agree with the above contentions of the petitioner herein. In our opinion the argument was improper and unsupported by the record.

The statements were not permissible comments or inferences from the testimony in the case nor were they reasonable replies to anything said by the railroad’s attorney. Respondent contends that the above arguments were partially provoked by petitioner. He points out that petitioner introduced into evidence the subpoena for Aguilar issued at the request of respondent. He claims that this evidence justified his comment in his opening argument that if there had been any doubt about the facts pertaining to the accident that "the railroad would have called Aguilar.

In reply thereto the railroad’s attorney argued that respondent had issued the subpoena and yet did not call Aguilar to the stand. Neither the evidence of the subpoena nor the argument by petitioner’s attorney under the above circumstances justified the attorney for respondent’s testimony in his closing argument that the railroad had intimidated Aguilar so that he was afraid to tell the truth on the witness stand. The railroad, as set forth in the

summary of the evidence herein, tried to prove that the accident did not occur because of a wet spot on the floor, and that respondent did not injure his back in the accident.

This effort of the petitioner to rehut respondent’s testimony certainly did not justify the argument that “anybody who sues the railroad for injuries and their wife and anybody that says ‘good morning’ to ’em is probably a thief and a liar.” Nor did petitioner’s later argument upon its evidence that the accident did not occur in the manner claimed by Hubbard and that his back was not injured thereby justify the statement by his attorney in his closing argument that it was the general practice of- the railroad to claim that anyone who sued the railroad was less than honorable and a liar and that all those who testified for him were also liars.

Respondent -Hubbard also contends that the attack upon the integrity of the railroad was justified by the argument of its attorneys that the railroad had been fair to Hubbard, having kept him on the payroll for several years on limited duty after he was injured in 1941. This argument was supported by the record and did not justify the general assault upon the character of the railroad officials and attorneys. It is also contended that the improper argument of Hubbard’s attorney was provoked by a comment made concerning the loudness with which he argued.

Certainly a comment upon the fact that his argument was loud cannot be held to justify an attack upon the integrity of the opposing party. There was evidence in the record that Hubbard at the time of the trial was working four days a week as a salesman and floorwalker in the store of Goodwill Industries. This evidence was relevant to issue of Hubbard’s disability.

It is contended that this evidence justified the argument by Hubbard’s attorney that the railroad by evading its obligation to compensate Hubbard for his injuries was thereby forcing the public through this charitable organization to provide for Hubbard’s support. This contention is also rejected. However, the record reveals that petitioner made only one objection to the argument of Hubbard’s attorney. It objected to a comment by Hubbard’s attorney on the failure of the railroad to produce any witnesses to contradict Hubbard’s testimony as to the cause of the accident.

This objection was overruled by the trial court and no further objection was made to the argument of Hubbard’s counsel. No objection was made as to the argument here complained of. Thus the railroad waived its right to complain on appeal as to this argument, unless it is so prejudicial that an instruction by the trial court to the jury to disregard it would not have removed from the mind of the jury the prejudice produced thereby. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054.

We need not decide whether any one of these statements alone was so prejudicial, because in such cases the cumulative effect of all the statements must be considered. Smerke v. Office Equipment Co., 138 Tex. 236, 158 S.W.2d 302; Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115; United States Fidelity & Guaranty Co. v. Lewis, Tex.Civ.App., 266 S.W.2d 194 (ref., n. r. e.). We are of the opinion that the cumulative effect of all these statements could not have been cured by instructions from the trial court, and therefore petitioner’s right to complain thereof was not waived.

We particularly note that much of the improper argument was in effect testimony by Hubbard’s attorney about matters not in the record. Such statements were most prejudicial, and if true, should have been made under oath, subject to the pains and penalties of perjury, and subject to cross-examination and rebuttal. No instruction from the court could make the jury ignorant of these alleged facts stated by Hubbard’s attorney. Hubbard contends that the railroad should not be allowed to remain silent, gamble on the verdict, and upon losing complain of the argument for the first time in its motion for new trial.

This contention invokes a well-established policy applicable when the trial court could have cured the error by appropriate instructions to the jury.

However, where the error is incurable the policy of the Texas courts is set forth in Rule 269, Texas Rules of Civil Procedure, wherein the first and primary duty is placed upon the attorney making the argument to keep within the record and refrain from improper argument, and the duty is next placed upon the trial court to halt improper argument upon his own motion, and last if the trial court does not do so, then “opposing counsel may ask leave of the court to rise and present his point of objection.” If the opposing counsel fails to object in such cases, he does not waive his right to complain thereof.

Respondent also contends that the argument, if improper, was harmless error and had no effect upon the jury. He contends that the evidence as to liability was practically undisputed and that the evidence as to damages would have supported a judgment several times larger than that awarded by the jury. We believe that an examination of the whole record reveals that there was a serious question of fact both as to liability in this case and as to whether Hubbard sustained any injury to his back in the accident complained of.

If it is assumed that the railroad was negligent and that this negligence proximately caused Hubbard to be totally disabled, then $17,000 is certainly not excessive, but this is an excessive amount for the railroad to pay if it was not negligent or if the accident did not in fact produce further injury to Hubbard’s fused spine.

Respondent argues with force that it is most difficult for an appellate court to gather from the record the true conditions surrounding an argument to the jury and that the trial judge who was present and observed such conditions considered petitioner’s assignments of error in its motion for new trial and overruled the motion. It is contended that anyone who was present at the trial and who observed all the circumstances would be of the opinion that the jury would have reached the verdict they did whether these arguments were made or not. The error was therefore harmless.

This contention of respondent’s attorney seems less convincing when we remember that he himself was present at the trial and presumably observed and evaluated all the circumstances and conditions existing just before he made his arguments. At that time with all the conditions fresh before him, their evaluation present in his mind, and the possibilities of an adverse verdict looming before him, he decided to make the improper arguments. So he made them, and won.

What he now argues with his victory secure and the memory of the fear of defeat grown dim, is not any more convincing than his res gestae action at the time of trial.

Upon the whole record we believe that the improper argument was not harmless but in the language of Rule 434, Texas Rules of Civil Procedure, “was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” While each case of improper argument must be considered upon its own peculiar facts, it is noted that the improper argument in this case “combines both the evils of introducing purported evidence not in the record and appeals to passion and prejudice.” Houseman v. Decuir, Tex., 283 S.W.2d 732. See also Southwestern Greyhound Lines v.

Dickson, 149 Tex. 599, 236 S.W.2d 115; Robbins v. Wynne, Tex.Com. App., 44 S.W.2d 946; Morrison v. Smith, Tex.Civ.App., 138 S.W.2d 280 (no writ); Stephens v. Smith, Tex.Civ.App., 208 S.W.2d 689 (er. ref.) ; Airline Motor Coaches v. Campbell, Tex.Civ.App., 184 S.W.2d 532 (er. ref., w. m.). The judgments of the trial court and Court of Civil Appeals are reversed and this cause is remanded for new trial.