Houston (1st Dist.).
Arthur Lee HOWARD, Jr., Appellant,
v.
FABERGE, INCORPORATED, et al., Appellees.
No. 01-83-0649-CV.
Sept. 13, 1984.
Rehearing Denied Oct. 11, 1984.
This is an appeal from a take nothing judgment against the appellant in a strict liability action.
In 1976, the appellant suffered upper body burns allegedly due to the flammability of Brut 33 Splash-On Lotion, which he had poured over his hands and chest. According to the appellant, the Brut lotion ignited when the appellant accidently dropped a match into his waistband. The appellant brought a strict liability suit against the appellee, alleging that the product lacked a warning indicating the product's flammability. The jury found against the appellant, and judgment was entered for the appellee.
We reverse and remand.
* * *
Terry Smith, one of appellee's expert witness, testified that the product would not ignite, even when moist, and performed several in-court experiments attesting to this opinion.
* * *
The appellant's fourth point of error complains of the trial court's allowance of new demonstrative evidence during the defendant's closing argument. There is ample support in the record which shows that appellee went far beyond a mere reenactment of the demonstrative evidence given during the trial. The court and jury witnessed the following rare demonstration. According to appellant's undisputed account, during appellee's counsel's final argument, he suddenly produced an unmarked and unauthenticated bottle of what was purported to be the defendant's product. In plain view of the jury, counsel then poured the substance onto his arm, lit a match and passed it over the doused arm while stating:
I don't think Mr. Howard could put on a shirt any faster than I can light a match. Let's see how he did it.
God, if I am wrong, burn me.
My friends, ladies and gentlemen of the jury, I urge you to believe the evidence of your eyes. If you have any doubt about it, try it for yourselves. Upon normal application, the product is not flammable. That's issue number one: Is the product flammable upon application to the skin? My goodness, you just saw me do it. I tried it at home before I tried it here to make sure. I tried it a hundred times. If it had burned one time, I wouldn't have done it here. You don't try this sort of thing in the courtroom without knowing in advance what is going to happen. (Emphasis added)
Although the appellant did not object to the foregoing demonstration and argument, he contends that the argument was so prejudicial, that an objection was not required to preserve the error for appellate review.
[8] Ordinarily, the appellate court classifies improper jury argument as either curable or incurable. If incurable, the appellant's failure to object does not result in a waiver. Otis Elevator v. Wood, 436 S.W.2d 324 (Tex.1968). The test for reversal is whether the argument, viewed in light of the entire record, was reasonably calculated to cause such prejudice to the opposing party that an instruction from the court would not eliminate the probability that an improper verdict was rendered. Texas Sand Company v. Shield, 381 S.W.2d 48, 58 (Tex.1964); Magic Chef v. Sibley, 546 S.W.2d 851, 857 (Tex.Civ.App.--San Antonio 1977, writ ref'd n.r.e.).
[9] In the instant case, the probability that defense counsel's "experiment" was reasonably calculated to cause the rendition of an improper judgment is great. During appellant's closing remarks, appellant indicated the alleged "weaknesses" in the testimony of appellee's expert witnesses. Accordingly, defense counsel was justified in attempting to rebut appellant's remarks and inferences and urge the jury to accept the defense's theories. However, defense counsel went far beyond merely rebutting appellant's remarks. He performed an unauthorized in-court experiment on himself, by dousing his arm with *650 an unidentified liquid, and attempting to ignite it with a match.
Undoubtedly, the jury was affected by counsel's unsuccessful attempts to ignite the product on his arm, and by counsel's plea for God to burn him, if he were wrong. Because defense counsel was the only person during the trial to perform this type of experiment on a "live" human being, the evidence was not cumulative, as contended by appellee, but was highly prejudicial. An instruction from the court, would not have eliminated from the jurors' minds the combined visual and oral effects of defense counsel's experiment. Indeed, the central issue at trial was whether the product could have ignited after application, especially on a human body. Therefore, in light of the entire record, we find that an instruction from the court would not have eliminated the probability that an improper verdict was rendered. This point of error is sustained.