author: BUCK, J.

text:
    SAYLES et al. v. CITY OF ABILENE.
    (No. 8742.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 2, 1917.
    On Motion for Rehearing, July 2, 1917.)
    1. Municipal Corporations <&wkey;288(2) — 'Public IMPROVEMENTS — STREETS — POWER TO Contract Indebtedness.
    Const, art. 11, § 5, providing that no debt shall ever be created by any city unless at the same time provision be made to assess and collect annually a sufficient sum to pay tlie interest thereon and create a sinking fund of at least 2 per cent, thereon, and Abilene Charter, art. 4, § 4, to the same effect, do not prohibit the city’s contracting for repairs to or for permanent improvements of streets, the same to be paid for at completion out of the available funds then on hand.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 759, 761.]
    2. Municipal Corporations &wkey;>993(2) — Restraining Improvements' — Right to Remedy — Damages—Necessity.
    To enable property owners to enjoin performance of an alleged illegal contract of the city for paving a street, they must show that the performance would injuriously affect them, and that they have no adequate protection at law.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2159.]
    On Motion for Rehearing.
    3. Municipal Corporations &wkey;>1000(5) — Restraining Improvements — Pleading—Damages — Necessity.
    In suit to enjoin street paving by city, the taxpayers’ allegation that the cost to the city, which is in truth and in fact a cost to the taxpayers, of the contemplated paving, would be a certain amount, is not subject to the necessary construction that the taxes of the petitioners would be increased, and the bill is therefore insufficient.
    [E'd. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 2170, 2171.]
    4. Municipal Corporations <&wkey;993(2) — Restraining Improvements — Right to Remedy-Damages.
    In property owner's suit to restrain paving of street and alley intersections by the city at the cost of the city, it is immaterial that after the whole improvement, which included paving between the streets, was consummated, the petitioners would be charged with the cost therefor.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2159.]
    Appeal- from District Court, Taylor County; Joe Burkett, Judge.
    injunction by Hattie Sayles and others against the City of Abilene. From an order dissolving the temporary injunction, plaintiffs appeal. Affirmed. On motion for rehearing.
    Motion overruled.
    Sayles & Sayles, of Abilene, for appellants. Hickman & Whitten, of Abilene, for appellee.
   BUCK, J.

This is a suit to enjoin the city of Abilene from performing a pavement contract. Plaintiffs alleged that they were the owners of 140 feet abutting on the section of the street sought to be paved by the city, and that under the resolution and ordinance providing for such pavement, and under the custom prevailing in said city of Abilene with reference to paving, it was intended and contemplated that the intersections of the street planned to be paved with another street and . an alley should be paid for by the city; that such paving constituted a iiermanent improvement, and that the city had no funds with which to pay for such improvements, and had not, by ordinance or otherwise, provided for the payment of the indebtedness thus to be created; that under the statutes and the Constitution of the state, and under the special charter granted by tbe Legislature, the city could not lawfully create a debt for such purposes without having first provided for the payment thereof.

Defendant answered 'by general demurrer and special exceptions, by general denial, and by the special denial of the allegation of the plaintiff that it was proposing or contemplating the creation of a debt, and alleged that the payment for such portion of the improvement as the city had promised to pay for and was contemplating paying for was to be made in cash immediately upon the completion of the work, and that the city had ample funds out of which such payment could be lawfully and properly made. An appeal was taken by plaintiffs from an order of the court dissolving the temporary injunction theretofore granted.

Briefly, giving full effect, as it is our duty to do, to the testimony in favor of the judgment, the evidence shows that the fiscal year of 1916-17 began May 1, 1916, at 12:01 a. m.; that the total assessed valuation of all property within the limits of the city of Abilene was $6,000,000; that the city by its charter is authorized to levy and collect for all purposes a tax not to exceed $1.60 on every $100 assessed valuation; that it is authorized to levy and collect a tax.not to exceed 25 cents on the $100 valuation for the purpose of making permanent street improvements and in providing for the interest and sinking funds of the bonds of said city for such purposes; that by ordinance the city had levied a tax for all purposes of $1.41 on each $100 valuation, out of which it had provided 40 cents for current expenses, 15 cents for the support and maintenance of the roads, streets, and bridges within the city limits, and 10 cents for the permanent improvement of the streets and highways within said city. It was also authorized to levy and collect a poll tax of $1 upon each citizen not exempt therefrom for said last-named purpose. By resolution dated January 11, 1917, the board of commissioners of said city had provided for the paving of North Second street from the east line of Walnut street to the east line of Pine street with asphalt macadam, the cost of the paving of the intersections, one street and one alley, to be paid for by the city, the balance to be adjudged against the abutting property owners. The payment by the city for said paving was to be made on estimates furnished by the city engineer, 15 per cent, of each estimate to be held back until the completion of the work and its acceptance by the city. By resolution of same date the city adopted the specifications prepared by the city engineer and ordered advertisements for sealed bids. On January 27, 1917, the bid of W. W. Middleton for the paving at $1.18% per square yard was accepted, and the contract was authorized. On the same date a resolution was passed providing for notice to abutting property owners; the date of the hearing being set for March 1, 1917. Notice under this resolution was given petitioners January 29, 1917. Petition for injunction was filed February 10, 1917. The intersections which the city agreed to pave measured 540 square yards, at the agreed price amounting to $639.90. On January 11, 1917, there was an overdraft against .the permanent street improvement fund of $5,615.59, and there was an outstanding note against this fund of $1,187. About 7 per cent, of the 1916 taxes remained delinquent at tire time of the trial, February 26, 1917. A note for $87.50 was payable to the city for the benefit of this fund. At the time of the trial the overdraft against this fund had been reduced by the eolleetiqn of taxes, etc., to $1,759.92. As to the general fund for the payment of current expenses, on January 11, 1917, there was an overdraft of approximately $6,500. The balance to the credit of this fund at the time of the trial was $7,397.31. This change occurred by reason of the collection of taxes, payment of fines, etc. There were two permanent improvement bond funds to take care of two issues of bonds. Each showed a balance sufficient to take care of the interest and sinking find provided for in the issuance of the bonds. The delinquent taxes due from 1911 to 1916, inclusive, amounted to $1,090.08. The balance on hand January 11, 1911, to the credit of the street and bridge fund, by which term the funds appropriated for current repairs was designated, was some $1,150, and at the time of the trial it was $7,727.94. The contract price for the entire paving amounted to $2,-500, of which Taylor couDty had agreed to pay, but had not paid at the time of the trial, the sum of $1,000. This amount, when paid, was to be credited to the permanent improvement fund.

Though we have recited the substance of all the evidence introduced, yet we are of the opinion that much of it has no bearing upon the issues presented in this appeal. Plaintiff below alleged that, if the contract for paving was permitted to be performed, a debt would be created to pay which no provision has been made by the city at the time of the makingl of the contract, and no tax levied or fund set apart for that purpose; that hence such debt would become a charge against the petitioners and the other taxpayers of the city of Abilene. This allegation seems to be the only one relied upon by plaintiffs as a ground for invoking the equitable powers of the court. But the evidence fails to show any immediate intention, or even remote purpose, of the board of commissioners of the city of Abilene to increase the rate of taxation in order to provide funds with which to pay for the paving for which contract had been made; indeed, the record contains no evidence to support this allegation. In fact, the whole trend of the defendant’s evidence is to the effect that no such steps would be made necessary by reason of the contract made for the obligation created. On the contrary, it was attempted to be shown, and we are not prepared to say that the attempt was not successful, that ample funds were available for this purpose.

The inhibition in article 11, § 5, of the state Constitution, to the effect that “no debt shall ever be created by any city unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and creating a sinking fund of at least two per cent, thereon,” and a similar inhibition in article 4, § 4, of the charter of Abilene, do not, in our opinion, prohibit a city’s contracting either for repairs to or for permanent improvements of its streets, the same to be paid for at completion out of available funds then on hand.

We do not feel justified in concluding that the commissioners of the city would not be authorized to pay for this paving out of the street and bridge fund, which showed at the date of the contract to have available funds to its credit of some $1,150. But, irrespective of the question as to whether or not there were funds available at the time of the contract, or which would be available upon the completion of the wort, with which to pay for the paving covered by the contract^ before the appellants could maintain their suit to enjoin the performance of an alleged illegal contract, they would have to show that the performance of the contract sought to be enjoined injuriously affected them, and that they had no adequate protection at law. Wood v. City of Victoria, 18 Tex. Civ. App. 573, 46 S. W. 284; Altgelt v. City of San Antonio, 81 Tex. 436, 17 S. W. 75, 13 L. R. A. 383; Waco Water & Eight Oo. v. City of Waco, 27 S. W. 675. This they failed to do.

Eor the reasons given, we do not think plaintiffs below brought themselves within the rule, and we conclude that the judgment of the trial court must be affirmed; and it is so ordered.

On Motion for Rehearing.

Our attention is called to an evident error in our original opinion in the statement that:

“The contract price for the entire paving amounted to $2,500, of which Taylor county had agreed to pay, but had not paid at the time of the trial, the sum of $1,000.”

The $2,500 charge was for the paving of Pine street, while the charge and debt, the incurring of which is sought to be enjoined' in this suit, is for the paving of the intersection of North Second street and an alley lying between Pine street and Walnut street. But we do not think the mistake in the finding of fact noted is material to the disposition of the case, and we refer to it and correct it merely in the interest of accuracy.

We do not now take the position, nor did we mean to be so understood in our original opinion, that a taxpayer may not enjoin the officers of a municipal corporation from creating a debt against such municipality, without at the same time making a provision for the payment thereof, when necessary, by the levying of a tax sufficient to pay the interest and sinking fund. We are not disposed to question the soundness o'f the opinion in City of Austin v. McCall, 95 Tex. 565, 68 S. W. 791, and the other cases cited by appellant on this question. In the McCall Case the city of Austin had entered into a contract by ordinance duly passed with the Austin Water, Light & Power Company whereby said company was granted the privilege to furnish water to the city of Austin for a period of 20 years at a specified annual charge. This contract was carried out by both parties for a number of years, when the city of Austin, having constructed a water and light plant of its own, refused to further comply with the terms of the contract theretofore made. Litigation followed, and judgments were obtained against the city by the water company. In settlement and compromise of the claims reduced to judgment and those that were still current, the city agreed to pay to the water company $175,000 in installments not to exceed $25,000 per an-num, to be applied: (1) To the extinguishment of the interest for each year on the whole sum of the purchase price, judgments, and claims against the city; (2) to the payment of principal and interest of the judgments and claims of-the water and light company against the city; and (3) to the payment of the purchase price of the plant. John D. McCall, a citizen and taxpayer of Austin, obtained an injunction enjoining the city of Austin and its mayor and council from making the purchase under said contract. It does not appear from the opinion of the Supreme Court, nor from the opinion of the Court of Civil Appeals, reported in 67 S. W. 192, whether applicant alleged that by means of this purchase his taxes would be increased or not, but it does appear that the indebtedness thus proposed to be created would extend over a period of years, and that the funds available for this purpose, under the city’s charter provisions, were not sufficient to pay the interest and provide the necessary sinking fund.

The case at bar is materially different in this respect, in that' it is shown that it was the purpose and intention of the city of Abilene to pay for this paving in part during its progress and in whole upon its completion. There was no deferred debt contemplated or necessitated. Appellants, while they alleged in their petition that they were property owning taxpayers in the city of Abilene, did not allege, as we interpret their petition, that the taxes on their property would be increased by reason of the consummation of the contract sought to be enjoined. The nearest approach to such an allegation is the statement:

“That the cost to the defendant city (which is in truth and in fact a cost to its taxpayers) of the contemplated paving of North Second street for the approximate 540 square yards contemplated to be paid for by defendant city will be something over $600.”

We do not think this averment is subject to the necessary construction that by reason of the consummation of the said contract the taxes of petitioners would be increased, nor do we think the evidence sustains such a conclusion.

The fact that appellants, under the ordinance providing for the paving of North Second street, would have assessed against their property abutting on said street the charge for such paving, would in our opinion be immaterial to any issue presented on this appeal. There .was no effort made to enjoin the city from making the general contract as to the paving of North Second street, but only as to this intersection, and no part of the cost of the paving of the intersection was it alleged in the petition was contemplated by the city to be assessed against appellants, or their property. They own no property abutting on this portion of the street involved. It may be that the real objection to the consummation of the paving contract was that, as an incident thereto, a charge would be made against the property of appellants abutting on North Second street, but only so much of such general contract is involved in this case as was provided for in the pavement of the intersection, and only as to the legality of this portion of the contract are we called upon or authorized to determine. TVe make this statement in view of the claim urged in this motion that appellants alleged in their petition that a charge would be made against their property abutting on North Second street for the paving in front thereof, and that by reason of such averment they disclosed that they would be injuriously affected by the consummation of the contract sought to be enjoined.

Appellants in their brief cite us to the cases of Howard v. Smith, 91 Tex. 8, 38 S. W. 15, City of Austin v. Cahill, 99 Tex. 172, 88 S. W. 542, 89 S. W. 552, and Pendleton v. Ferguson, 99 Tex. 296, 89 S. W 758, as authority in support of the contention that, inasmuch as the improvement here involved was shown by the testimony of the city engineer to be in the nature of a permanent improvement of the street, the city commissioners of Abilene would not be authorized to use any portion of the general fund, or any part of the street and bridge fund, the fund for current repairs of streets and bridges, for the payment of the paving of this intersection. In the Howard v. Smith Case the contract sought to be enjoined involved the issuance of 30-year bonds, and no provision was made for the interest or sinking fund. Under the final contract between the city of Corsicana and the contractor, Howard, it was agreed that Howard would do further paving in the city of Corsicana, and that the city—

“at the expiration of six months after said work is completed * * * shall issue 5 per cent. 30-year bonds, and deliver to the said Howard for the amount then due the said Howard by notes or in cash on said contract.”

One Allyn, at the foot of this agreement, signed the following:

“I obligate myself that the above agreement will he faithfully carried out.”

The question before the Supreme Court was as to the validity of the guaranty of Allyn that the city of Corsicana would carry ■out the terms of its agreement to issue the bonds. Such certified question was stated in the following language:

“Did the guaranty of the contract in which the city agreed to issue its bonds in payment for street improvements, which all the parties then knew it had no legal power to do, bind the guarantor to pay the debt for such street improvements which was agreed to be paid in such bonds of the city?”

The Supreme Court answered the question in the negative, and any language used or statements, contained in the opinion of the Supreme Court in answer to the question certified must be construed in the light of the question presented to said court.

The issue in City of Austin y. Cahill, supra, was also presented to the Supreme Court on certified questions, which questions involved the issue of necessary parties to a mandamus proceeding in the lower court to enforce payment by the city of Austin of alleged indebtedness, partly reduced to judgment, claimed to be due plaintiff below for interest accruing on certain water and light bonds issued by the city. The Supreme Court held in that case that the legislative intent, as shown in the charter granted to the city of Austin (Special Laws 27th Leg. 1st Called Sess., p. 12, c. 4) was to provide for levy to pay the refunding bonds, but to leave power in the city to make another and additional levy to pay such bonds as might remain unrefunded. In the course of the opinion it is said:

“It may be true, for example, that it is sometimes competent in administrative matters, no statutory inhibition existing, to apply a tax professedly raised for one purpose to some other legitimate purpose. Long v. Richmond County, 76 N. C. 273, 280. But this can give no sort of warrant to divert a fund arising from a tax levied by special authority from the Legislature, when that fund is made part of a contractual obligation running beneficially to a particular class.”

From a review of this opinion it is evident to our mind that the Supreme Court did not hold or intend to hold that a city was not authorized to pay out of its general fund items of trivial expense, even though connected with and an incident to a contract involving a street improvement, which in its nature and as a whole might properly be termed permanent, when it did not appear that the vested rights of any bondholders or creditors would be injuriously affected, and it further failed to appear that the moneys available to such general fund were insufficient to pay and provide for the current expenses of the city government, and also pay such item of special expense.

In Pendleton v. Ferguson, supra, the Supreme Court says:

“We think that the holder of a claim against a city which has accrued as a part of the current expenses of a particular year after the current expense fund of that year has been exhausted becomes a general creditor.”

In Sherman v. Shobe, 94 Tex. 126, 58 S. W. 949, 86 Am. St. Rep. 825, it is held that;

“It is only upon, the surplus of the general revenues of a county that remain after the current expenses have been paid that a general creditor has a claim.”

But, as before stated, there is no showing made here that the funds to the credit of the general fund were not sufficient to pay the current expenses for that fiscal year, and also pay for this paving. By the terms of Charter of the City of Abilene, c. 4, § 40, the hoard of commissioners are vested with the power to provide by ordinance and appropriate money from the available funds of said city to special funds for special purposes, and to make the same disbursable only for certain purposes. There is nothing in the record to show that by ordinance said board had ever so limited the expenditures of the funds to the credit of the street and bridge fund. So much of the ordinance as relates to this latter fund provides that the board of commissioners may levy and collect a tax of 15 cents on each $100 “for the support and maintenance of the roads, streets, and bridges of the city of Abilene.” We think under this authority the pavement in question might properly be paid for out of such fund.

The motion for rehearing is overruled.
      For other cases see same topic and KEY-NUMBER in all'Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGHTOWER, Jr., C. J.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ROBERTS.
    (No. 257.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 25, 1917.)
    1. New Trial &wkey;>144 — Misconduct oe Jury —Evidence—Sueeicienoy.
    On motion for a new trial, evidence held sufficient to show that jurors improperly discussed that plaintiff would have to pay a large attorney’s fee, and that their verdict was influenced thereby, necessitating a new trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 298.]
    2. New Trial c&wkey;44(3) — Abuse oe Discretion — Evidence. •
    Where, on a motion for new trial for misconduct of jurors, in an action for personal injury, the jurors were examined, and their testimony shows that it was discussed among them that plaintiff’s attorney would get a large fee, and one of the jurors admitted that he considered it in his verdict, it was an abuse of discretion of trial court to overrule the motion.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 82-84.]
    3. Appeal and Error t&wkey;978(3) — Abuse oe Discretion — Review.
    Where the undisputed evidence showed misconduct of the jurors in reaching their verdict, the trial court’s refusal to grant a new trial is an abuse of discretion, reviewable on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3870.]
    4. Master and Servant <&wkey;274(4) — Injuries to Section Hand — Evidence—Admissibility.
    In a section hand’s suit against railroad employer for injury received when the hand ear upon which he was riding collided with a cow on the track, evidence that the right of way was not fenced was admissible for the purpose of showing that foreman might have anticipated that cattle would be upon the track, and that a hand car running at a high rate of speed, as alleged, might come in contact with cattle.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 944.]
    5. Evidence <®=^471(17) — Opinions — Reckless Conduct.
    In a section hand’s suit against a railroad employer, for injury received when the hand car upon which he was riding collided with a cow, evidence that the conduct of the foreman was reckless, etc., was inadmissible.
    6. Evidence <&wkey;471(13) — Opinions — Bodily Condition.
    In a section hand’s suit against railroad employer for injury received when the hand car upon which he was riding collided with a cow on the track, statements to the effect that Ms injury caused him suffering and pain, and that they prevented his being able to get around, etc.,, were not admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2167.]
    7. Evidence <&wkey; 127(2) — Res Gestíe — Exclamations oe Pain.
    In section hand’s suit against railroad employer for injury received when the hand car upon which he. was riding collided with a cow on the track, his exclamations of pain and suffering, which were explanatory of his condition, and made to show pain and suffering at the very time, were admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 379.]
    Appeal from District Court, Angelina County ; L. D. Guinn, Judge.
    Suit by Jack Roberts, by next friend, Zemeriah Roberts, against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and, defendant appeals.
    Reversed and remanded for a new trial.
    Denman & Thomas, of Lufkin, and Marsh & Mcllwaine, of Tyler, for appellant. S. H. Townsend, of Lufkin, for appellee.
   HIGHTOWER, Jr., C. J.

We take the following statement, showing the nature and result of this suit from the brief of appellant, which is conceded by appellee to be correct.

“This suit was instituted by appellee, Jack Roberts, by his next friend, Zemeriah Roberts, against appellant, St. Louis Southwestern Railway Company of Texas, in the district court of Angelina county, to recover damages for personal injuries received by him while a laborer in its section gang; said injuries having been occasioned by the alleged negligence of appellant in permitting a hand car upon which appellee was riding to come in collision with a cow which got upon the track in front of said hand car. The trial was to a jury, and, in keeping with the verdict, judgment was entered against appellant for $2,500.”

We have carefully gone over the record in this case, and we have concluded that appellant’s eighth assignment of error, which complains of the misconduct on the part of the jury, while deliberating upon their verdict, must be sustained, and the judgment of the trial court reversed, and the cause remanded. We shall therefore dispose of that assignment in the beginning.

This assignment complains, in substance, that the jury, or some of them, before a ver-diet had been reached, discussed and considered the fact that plaintiff’s attorneys would get part of the judgment that might be rendered in his favor against appellant, and that the jury, or some of them, were influenced by such discussion, and caused to render a verdict in favor of the plaintiff for a larger sum than they would have rendered in his favor had not the question of attorney’s fees been considered and discussed.

In order to a proper disposition of this assignment, it becomes necessary to here state what was said among the jurors' on this point, while deliberating upon their verdict; and in view of the state of the authorities, dealing with questions of this character, as we now find them to be, we have deemed it proper to set out at some length what this misconduct on the part of the jury was, and, in doing so, we take appellee’s statement about this matter, as contained in the brief of his counsel. Attached to appellant’s motion for new trial were the affidavits of two of the jurors, W. W. Stephens and Coke Murphy, and both of these jurors also testified in person on the motion for new, trial, as did also the juror H. W. Day. Juror Stephens testified in person, substantially as follows:

“Q. I believe you were one of the jurors who sat and tried the case of Jack Roberts v. The St. Louis Southwestern Railway Company of Texas? A. Yes, sir. Q. Tried at this term of court, and on or about the 2d or 3d day of November of this year? A. Yes, sir; I don’t remember the date, but I was a juror in that case. Q. I will ask yira if, while you were in the jury room deliberating upon your verdict. the question of attorneys of the plaintiffs — that is, I mean, the question of the attorneys’ fees— were discussed, and what that matter discussed by the jury or any member of the jury was? A. Yes, sir; I think some of them spoke about the attorneys’ fees; I am sure I heard that. Q. Do you remember what was said as to what the attorneys’ fees would be? A. Yes, sir; I think about half, some of them stated — thought that the attorneys would get about half of the boy’s recovery. Q. Do you remember the name or names of any of the jurors who discussed that? A. N’o, sir; I don’t. Q. Do you know about how many of the jurors discussed it? A. Well, several of them spoke about it. Q. Now, I will ask you if you heard the jury, or any member of that jury discussing the question of attorneys’ fees, if they stated the boy would get half; that is, the plaintiff would get half, and the attorneys would get half — in your hearing, Mr. Stephens, was that discussed? A. I don’t remember all, but it seems that something like that was said. Q. I will ask you if you heard any member or members of that jury discuss any question of any attorneys’ fees in that case? A. Yes, sir; I heard them discuss about the attorneys would get part of it, they supposed they would, but I could not tell you who that was; several of them were discussing, first one and another, about it. Q. I will ask you if any of the members of that jury stated how much the attorneys would get? A. Yes, sir; some of them put it down at $1,000. Q. I mean what the attorneys would get, Mr. Stephens? A. Well, about half — I think about half — that’s what I understood ; some said he would get half. Q. That the attorneys would get half? A. Yes, sir; that’s the way I understood it. Q. That was the understanding of the jury? A. I understood it that way. Yes, sir; I am just stating that I understood it that way. I don’t know what the others understood. Q. You understood the attorneys would get about half? A. Yes, sir. Q. I will ask you if that discussion of attorneys’ fees by some members of that jury had anything to do with you in rendering that verdict in favor of Jack Roberts and against the St. Louis Southwestern Railway Company of Texas in the sum of $2,500? A. Yes, sir; I think so. I believe the boy ought to have had something, but I didn’t think he should have that much. I thought the boy was entitled to something, but thought that was more than he was entitled to. Q. If that question of attorneys’ fees hadn’t been discussed at all, and hadn’t been brought up by any members of the jury, would you have rendered a verdict in favor of Jack Roberts for $2,500? A. No, sir; I don’t believe I would. Q. You state, then, that that question or discussion influenced you in rendering a verdict for $2,500? A. Yes, sir, to a certain extent.
“Cross-Examination by Appellee.
“Q. You were sworn as a juror before you went on the jury, to try this case? A. Yes, sir. Q. You were sworn to try the case according to the law and evidence? A. Yes, sir. Q. And that is the way you did try the case the best you understood it? A. Yes, sir; of course, I agreed to the verdict, and about dividing it up. Q. You tried the case according to the law and evidence in the case as you understood it? A. Yes, sir; but that of course— Q. And there was no evidence offered at all about any attorneys’ fees in the case, was there? A. No, sir; nothing said about it by any witness in the case —just mentioned by some in the jury room. Q. You never heard any testimony at all with reference to that? A. No, sir; I didn’t know anything about that — just heard some of them discussing it in the jury room. Q. Do you know who approached that subject or brought it up? A. No, sir; I don’t. Q. Do you know — do you remember what time the case was submitted to you, at what hour you went to the jury room in the case? A. It was about night; I think about night, I think. Q. You rendered a verdict before noon on the next day? A. Yes, sir; I think just about 11 o’clock the next day.
“Redirect by Appellant.
“Q. I will ask if there was any other discussion at all among any members of that jury relative to any other matter, other than the evidence in the case? A. Yes, sir; they discussed a right smart about first one thing and then another; about the boy and one thing and another. I don’t know what all. Q. I will ask you if there was any discussion about a compromise? A. Yes, sir; I heard some speak about that — some of them spoke about that being too much, and some said the lawyers would compromise it, something like that; I don’t remember just what. Q. They stated if you would give him that much the lawyers would compromise it? A. Yes, sir. Mr. Collins, for the plaintiff: That question is leading, and we object to it. Court: Yes, sir; I would not lead him.”

At this point the juror * Stephens was shown the written affidavit which he had made, and which was attached to appellant’s motion for new trial, and the examination continued:

“Q. Is that your signature? A. Yes, sir; it looks like mine. Q. You swore to that before me, did you not? A. Yes, sir; I think so. Q. At that time you read it over? A. No, sir; I didn’t read it. Q. Didn’t I read it to you? A. I believe so. Q. And you signed it? A. Yes, sir. Q. And you understood at that time the contents of that matter — that instrument? A. I don’t know all about that. I guess— Q. You stated in there that' you''would not have agreed to the verdict of $2,500 if it hadn’t been for the question of attorneys’ fees influencing you; is that true? Mr. Feagin, for plaintiff: We object to that method -of questioning this witness, if the court please. Court: You might let him stand aside and read it over, and use some other witness now, on account of time. Mr. Henman, for the defendant: Well, that is all right; he can stand aside and read it over to-himself, and we will use "Mr. Day.”

Mr. Day, being called, to the stand, testified:

“Q. What is your name? A. A. H. W. Day. Q. You were one of the jurors who tried the case-of Jack- Roberts v. St. Louis Southwestern Railway Company? A. Yes, sir. Q. Tried at this term of court ?•' A. I was one of the jurors. Q. Mr. Day, after, the jury went to the jury-room--to deliberate on their verdict, I will ask you if any discussion came up, as-far as you know, about any matter that was not before you in evidence? A. Well, it wasn’t before us in evidence. - No; it wasn’t before us in evidence, and it was about what the boy would get if it was compromised or paid; that is, according to whatever verdict we should give, what part the boy would get. Q. Just what discussion was there along that line among the jurors, Mr. Day? A. Well, I don’t know hardly, but it was figured if we rendered that verdict the boy would get about half. Q. That was discussed then?, A. Yes,"sir; some. Q. Was there anything else discussed by the jury, or any member of the jury, besides the question of attorneys’ fees? A. Well, now, we discussed the boy, as to his injury, and what fhe boy was worth, whether, he was injured at all or not, and' such "as that.'- 'Q. I will ask you if there waá anything that influenced you in any way in arriving at that verdict, other than the evidence? A. Yes, sir; I believe so. Q. Well, what was it, Mr. -Day? A. Why, we figured it this way, that we would be tied up there indefinitely, the way things stood, without a compromise; there was 11 of'us one way and just one the other way. '(¡>. How was that, if you remember — what did you say about'11 being one way and- one being the other way? A. I said 11 of the jurors was one way and just one the other way, and finally 11 agreed to give him $2,000, and one wanted to give him $5,000, and he wanted to answer each question against the railroad, and we wouldn’t do that — didn’t want to. Q. I will : ask you . whether or not any member or members of the jury stood below or lower than $2,000 at any time? A. Yes, sir; at first several .of them were for '$1,000. Q. Was any lower than $1,000? A. I don’t know. That matter was discussed .thoroughly, but I think the lowest one was for $1,000. Q. Just go ahead and. -tell about being tied up there? A. Well, we-discussed it nearly all Friday night and Saturday morning, and hadn’t got together, and we never thought-of that compromise at all —just thought we .-couldn’t .agree; but we all took a walk Saturday morning around the streets, just walking around, and some one spoke to me — some member of the jury spoke to me and said, T think, we can get up a compromise;’ and I said, ‘Well, I would rather compromise than to be tied :up:’ I don’t remember" now-just who it was that mentioned that to me — it was some member of the .-jury; and. before we got back to the courthouse "a compromise was agreed on, and we came on back down here, and just a little while before dinner we returned the verdict. Q. What led you to believe you would be tied up indefinitely? , -A. Well, we learned that Judge Guinn’s mother was sick, and that he could not be here, and I didn’t know where Any special-judge was elected- or'anybody to receive our verdict-or not, or anything about that. We learned' that Judge Guinn’s mother was dangerously ’ ill, ánd" I have later learned that she died.- Q. At that time did you know the-judge had gone away? A. Yes, sir; we understood. he went off on the 7 o’clock train — on the 7:40 train. Q. Did the fact that you knew the judge was gone and wasn’t there to receive the verdict influence you any in rendering that verdict for $2,500? A. No, sir; I don’t think it did, because I didn’t know just when he would be back, and I don’t think that had anything to do with me in rendering the verdict; in fact, I would not consider the difference between us qf such awful vital importance. There was not much difference between $2,000 and $500, and we just agreed to come up to $2,500. Q. You say the fact that you understood the judge was gone and you were apt to be tied up indefinitely on that account didn’t influence you? A. No, -sir; the judge being away didn’t influence me at all. Q. But the fact otherwise that you thought you would be tied up indefinitely did influence you, I believe you said? A. I didn’t see any chance of a verdict until just a few minutes before we were together. Q. What caused you to think you would be tied up indefinitely? A. Well, that was Saturday, and Sunday was- coming, and I thought possibly it might be Monday before anybody would be here to receive the verdict.
“Cross-Examination by Appellee.
“Q. You were sworn before you went on this case as a juror? A. Yes, sir. Q. You tried the "case according to the law and evidence of the casé,, ás you understood it? A. Yes, sir. Q. And you tried the case according to the law and the evidence as you understood it? A. Yes, sir. Q.- There wasn’t any testimony about any attorneys’ fees in the case? A. Yes, sir; it was, discussed. Q. I mean there was no 'testimony about that in the case? A. No-, sir; I. don’t, know that there was — I don’t think there was, and I don’t -remember how. come it to come up nor anything about it much. 'Q. You have sat on juries a good deal in civil cases? A. Yes,, sir; both kinds. Q. Most all verdicts in civil’ cases are rendered on an agreement among members of the jury; that is, there is often a difference between them, .and they get together? A. Yes, sir; I never did know one to get together any other way except by agreement. Q. It has been your experience that that is the way they get together in, civil cases? A. Yes,, sir; and criminal cases, too.
“Redirect.
“Q. The question of attorneys’ fees was discussed in the jury ro-om among the jury by. members of-the jury.?’ A. Yes; sir, some; but I don’t know jiist 'who it was.now.” ,

The juror Coke Murphy testified:

“Q. Your name is Coke Murphy? A. Yes, sir. Q. Are you - one of the jurors who tried the. case of Jack Roberts v. St. Louis Southwestern-Railway Company'of Texas? A. Yes, sir. Q. Tried at this term of court about the 2d or 3d day of November? .A. Yes, sir. ■ Q. Now, at the time the jury were in the jury room deliberating on the verdict, I will ask you if there was any discussion - of anything .or any fact1 that wasn’t testified to by the witnesses or didn’t-appear in the evidence? Court: "Was the question’ of attorneys’ fees "discussed ? Let’s get down to1 the question, Mr. Denman. Witness: Yes, sir;I think so. Q. Just state what that was, as far as you know? ■ A. Well, several ■ of ■ them, discussed it with’ reference to what the boy should have and what he would get in the usual way of paying an attorney;- 'several thought the attorneys would’ probably get .about half of whatever amount we allowed the boy. Q. I will ask you if. there was- any discussion of anything else, if there was any other thing'or facts discussed other -’than the' -question o-f attorneys’fees, and that.inflúqnced,-the jury in any .way in so far as you know, Mr. Murphy? A. Well, I don’t know that it influenced the jury any. I know wo understood some way that Judge Guinn was going away, and we thought if we didn’t reach a verdict that afternoon or early the next morning we might be tied up for several days. Q. Now, with reference to the discussion of attorneys’ fees, was there anything said as to how much the boy would get of the recovery and how much his attorneys would get? A. Why, I don’t know that any of them stated any definite amount; quite a few of us thought if the boy could get $500 that would be ample for him. Q. You say some of you thought that would be enough? A. Yes, sir. Q. And now I will ask you why it was you agreed on $2,500 if you thought $500 would be ample? A. Well, as to that, I couldn’t answer for any one except myself. Q. Well, just state about yourself, why you did it? A. Well, I was anxious to get loose, and it didn’t seem like we could get the other party to come to any other decision at all. Some of us thought at first we would give him $1,000, and I thought $1,000 would be the outside figure that I would allow him, and I didn’t want to give any more than that at first, and I think some of us discussed a verdict for $1,000 before we ever voted. Q. Now, what amount did you think the attorneys would get? A. Well, I didn’t know, but I thought it was usual for the attorneys to get about half, and that was mentioned in a general way. I thought the attorneys would get half of whatever we allowed the plaintiff. Q. You thought if you gave a verdict for $2,500, that the boy would get $1,-250 of that amount, and the attorneys $1,250? A. That was my idea. Q. And, but for that fact, you would not have come to the $2,500 verdict, would you, Mr. Murphy? Mr. Collins, for the plaintiff: We don’t think he should lead him. Court: No, sir; don’t lead him. Q. I will ask you if this fact had anything to do with you agreeing to the verdict for $2,500? A. I think I came to the $2,500 more to get loose than anything else. Q. You don’t think the fact that you thought the attorneys would get half of the recovery had anything to do in the way of influencing you in the case, either one way or the other? A. No, sir; I think not. Q. Now, you said something about thinking that probably you would be tied up indefinitely? A. Yes, sir; if we didn’t reach a verdict. We knew the mission ‘Judge Guinn went to Lufkin on, but I knew or thought that in the course of twelve hours we could get him down here if we agreed on a verdict; otherwise we would be tied up until he returned. A. And did that fact or not influence you in rendering a verdict for $2,500, Mr. Murphy? A. No, sir; I couldn’t say that it did, because I found out after Judge Guinn left he had appointed Judge Robb to receive our verdict.
“Cross-Examination.
“Q. Nothing but the law and evidence influenced you in arriving at this verdict, Mr. Murphy? A. Well, the fact that one man wouldn’t come to the majority and— Q. You all went up some? A. Yes, sir. Q. Did you regard that as part of the law in the case? A. I never thought anything about that. Q. Did you regard it as part of the evidence in the case? A. No, sir; I didn’t think so. Q. You know you were sworn to try this-case according to the law and evidence of the case and in the case? A. Yes, sir; we all know that. Q. And were you influenced by anything in rendering that verdict, except the law and evidence? A. No, sir; I don’t think I was.
“Redirect.
“Q. Why was it that you agreed on a $2,'500 verdict when you thought $5Ü0 was ample for the boy? A. Well, as I said before, it didn’t seem .we could.ever get the party that was holding out for $5,000 down any. He wouldn’t come to anything less than $5,000 that night, but next morning.some time it was whispered around that he would come to $2,500 and no less.”

Juror Stephens, being recalled to the stand, further testified:

“Q. You have read over that affidavit? A. Yes, sir. Q. And it was signed by you? A. Yes, sir'; of course there is a word or two in there that I didn’t thoroughly understand, but the most of it is just like I stated, I think, Q. The contents of that affidavit is correct then, in a general way; that is, the substance of it is correct? A. Oh, yes, sir. Mr. Denman, attorney for defendant: Now, we want to introduce this affidavit in evidence. Mr. Collins, for defendant: To which we object. Court: It is overruled.”

Thereupon the affidavit of- the juror, which he admitted to be substantially correct, was introduced in support of the motion, reading as follows:

“The State of Texas, County of Angelina.
“Before me, the undersigned authority, notary public in and for Angelina county, Texas, on this day personally appeared W. W. Stephens, to me well known, and who, after being by me duly sworn, stated: That he was one of the jury which sat in and tried the case of Jack Roberts, by next friend, v. St. Louis Southwestern Railway Company of Texas, No. SOSO oh the docket of the district court of Angelina county, Texas, which said case was tried, that is,, the verdict rendered, and returned, on the 4th' day of November, 1916; that, while the jury was in the jnry room deliberating on their verdict, a discussion arose as to the question of attorneys’ fees, and several of the members of the jury stated that the attorneys for plaintiff would get at least half of what the boy got, that was the custom in such cases; this question of attorneys’ fees was discussed at length by six or seven of the jury to my personal knowledge, and it was told to me that the lawyers would get half; this knowledge or information or discussion led and influenced me to agree to a verdict of $2,500 for the plaintiff, which was against my wishes and too great a verdict in my opinion, and not in accordance with the evidence at the trial, but I came to or went up to $2,500, so that the jury discussing the question of the railway company compromising with the lawyers and plaintiff, and stated that if the jury gave him that sum that the plaintiff and his lawyers and the railway company would get together and settle amicably, but that if a smaller sum was given they would not settle for so much; that this fact led and influenced him to agree to the verdict as rendered, which was against his wishes, and which he-would not have agreed to if the members of the jury had not told him that the lawyers would get half, and that the railway company would settle if they gave the boy $2,500; that the jury stated that the county was being put to a great expense in their staying there, and that they ought to get through; that this also led and influenced him to agree to the verdict rendered; that said verdict did 'not reflect his true verdict, and was against his wishes, and but for the fact that several members of the jury stated to him and in his hearing that the lawyers would get half, and that a settlement would be had if they gave him the sum of $2,500, he would never have agreed to such verdict.
“[Signed] W. W. Stephens.
“Sworn to and subscribed befoz-e me this the 7th day of November, A. D. 1916.
“[Signed] Kester W. Denman,
“Notary Public, Angelina Gounty, Texas.”

The foregoing testimony, being that of .the jurors -Stephens, Day, and. Murphy, was all that was before tbe court on. tbe question of misconduct of tbe jury, tbe other nine members of tbe jury not being accounted for by either side.

Now, tbe question for decision is, does this evidence show, without dispute and with reasonable certainty, that tbe question of tbe amount of plaintiffs attorneys’ fees was discussed by tbe jury while deliberating upon their verdict, and before their verdict was reached; and also does it show, without dispute and with reasonable certainty, that the jurors who sat in this case, or any of them, were influenced by such discussion, and caused thereby to render a verdict in favor of appellee for a greater amount than would have been rend'ered in his favor had not such discussion and consideration by the jury occurred? We think that candor compels an affirmative answer.

If the discussion as to attorneys’ fees occurred, which must be admitted, because it is absolutely without dispute, then, of course, there can be no question regarding its impropriety, and that question is not an open one in this state. Every opinion emanating from every appellate' court in this .state, .which has ever spoken on this question, holds that attorneys’ fees in matters of this kind are not recoverable, and are not proper to be considered by juries in reaching verdicts; and some of the courts, including the Supreme Court, speaking through Chief Justice Brown, have emphatically said that such conduct as this is not only improper, but that it is highly reprehensible, and that jurors who indulged in such conduct should be promptly punished for same. Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606.

It is not contended by appellee that the discussion by the jury of the question of attorneys’ fees complained of was not improper, but appellee contends that since the motion for new trial on this ground was addressed to the sound discretion of the trial judge, and his discretion having been exercised, and he, in the exercise of that discretion, having overruled the motion, the ruling is conclusive and binding on this court, ‘ even ■ though it may be made clear to this court that the trial court abused his discretion in overruling the motion. We cannot agree to this contention by appellee, and while we concede that this ground of the motion for new trial was a matter resting within the sound discretion of the trial judge, yet we also hold, though reluctantly, that it is made clearly to appear, by the evidence of the jurors Stephens, Day, and Murphy, and more especially by Stephens, that the trial court abused his discretion in overruling this motion.

Appellee, through his energetic counsel, in support of his contention that this court cannot set aside or review the action of the trial court in this matter, has cited the following authorities: H. & T. C. Ry. Co. v. Gray, 137 S. W. 729; H. & T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606; Telephone Co. v. Evetts, 188 S. W. 289; Railway Co. v. Hagen, 188 S. W. 954; M., K. & T. Ry. Co. v. Brown, 140 S. W. 1177; Fox v. Ry. Co., 186 S. W. 858; G., H. & S. A. Ry. Co. v. Pingenot, 142 S. W. 95.

We have read each and all of the above authorities, and have reached the conclusion that not one of them sustains the broad proposition contended for by counsel for ap-pellee.

In Railway Co. v. Gray, first cited, the Austin Court of Civil Appeals, speaking through Judge Jenkins, very briefly disposed of an assignment of this character, and said that the fact that a juror had mentioned in the jury room, while the verdict was being discussed, that the plaintiff ought to have a verdict for $50,000, for the reason that his attorney would get half of his recovery, would not justify that court in holding that the trial court abused its discretion in refusing a new trial; still, it is not made to appear from the opinion in that case what the extent of the discussion was, nor does it appear that any juror was influenced to return a larger verdict against the appellant than would otherwise have been returned but for the mentioning of such matter before the jury, and therefore we do not regard that opinion as sustaining appellee’s contention. Judge Jenkins said, too, in that opinion, in effect, that such expression on the part of the juror in that case .was merely-the expression of an opinion on his part, and was not the statement of any fact, and that, therefore, the matter, seemingly, was of little importance. In so far as the statement by the juror in that case, or in any other case, of an opinion as to what plaintiff’s attorney would get, is concerned, we cannot see what difference there would be between the opinion of the juror expressed to his fellows on the jury and the positive statement of such juror as to what the attorney would get; because the material question, it seems to us, would be whether such improper discussion was had, and .whether the jury, or any member of it, was influenced by such discussion, to the prejudice of appellant. Application for writ of error to the Supreme Court was made in that case, and the Supreme Court, in denying the application, delivered a brief written opinion showing that 'the Supreme Court denied such writ, not on the ground that the trial judge’s discretion in overruling the motion for new trial could not be reviewed and reversed on appeal, but the Supreme Court denied the writ of error in that case on the ground ' that it was not made clearly to appear to that court that the trial judge did, in fact, abuse his discretion in that case. See 105 Tex. 42, 143 S. W. 606. Judge Brown; speaking for the Supreme Court, said:

“We had doubt as to the authority of this court to’review the ruling of the trial court upon the motion, so far as based upon the evidence of the jurors, and requested counsel for each party to furnish arguments, to which they responded by able and helpful discussions of the question. After proper consideration given to the briefs furnished, we conclude that the ‘discretion’ expressed in the act above copied is upon the same level with the discretion vested in the trial judge in many instances, and that we may review its exercise wherein it clearly appears that the rights of the parties have been disregarded. If the evidence taken by the trial judge left it reasonably doubtful as to the effect the statement had upon the amount of the verdict of the jury, we would feel inclined to exercise our authority and set it aside; but the judge who tried the case seems to have acted promptly and fairly in the investigation, and we know that he could form safer conclusions from examining the jurors than this court can from the record. There is much in looking at the man who testifies.”

The act referred to by Judge Brown in the foregoing quotation was the .act of the 29th Legislature (chapter 18), amending the former law relative to the granting of new trials, etc.

As stated above, neither the opinion of the Court of Civil Appeals, nor that of the -Supreme Court, in the Cray Case, discloses the extent of the discussion in the jury room complained of in that case, and, indeed, the facts, as disclosed by the opinions of both courts, are so meager that they furnish no guide in the present case.

Were it not for the very full discussion of this question found in the opinion of the Court of Civil Appeals in San Antonio, in the case of Traction Company v. Cassanova, 154 S. W. 1190, we would go at length into the discussion of each of the authorities cited by appellee, for the purpose of showing clearly that the conclusion we have reached in this case is not in conflict with any of them. It will be seen, by an examination of the authorities cited by appellee, that some of them go off on the proposition that it was a disputed faot on motion for new trial whether the alleged improper conduct occurred at all, and in several of such instances the action of the trial judge in overruling the motion was upheld, in keeping with the well-established rule that it was a question of fact for his decision and determination, and he having determined that no such conduct took place, and the evidence justifying such determination, the appellate court would not, of course, disturb his finding; and in the other oases cited it was not affirmatively shown in any of them that the jury, or any member thereof, was actually influenced by such improper conduct to render a larger verdict against the appellant than would probably otherwise have been rendered. Ap-pellee has not cited a single case showing that the trial court’s judgment in overruling a motion of this kind was 'upheld by the appellate court, where it was affirmatively shown to the trial court, by evidence in the proper way, that the jury, or any member thereof, was influenced by improper conduct in the jury room to render a larger verdict against the appellant than would otherwise have been rendered, and we do not believe, that any such case could be cited, but, if so, we would hesitate to follow it. We think that the opinion of Chief Justice Ely, in the case of Traction Company v. Cassanova, supra, announces the correct rule, and it expresses the views of this court so fully that we simply adopt it on this point as our opinion of the law, in disposing of this assignment, without further discussion thereof. See, also, Ry. Co. v. Vivian, 180 S. W. 952; Railway Co. v. McKinnell, 173 S. W. 937.

We cannot tell what influence, if any, was had upon nine of the jurors who tried this case, because, as above stated, they were not produced on the hearing of the motion, nor were their affidavits resorted to; but we do know from the three who testified that the conduct complained of — that is, the discussion of the question as to how much of plaintiff’s recovery would go to his attorney — took place, and nobody disputes it; and we know that this conduct was improper, and highly improper; and we know that it was indulged in before a verdict was arrived at; and we know that such conduct was highly calculated to influence the jury in rendering a verdict in favor of appellee for a greater amount than they would otherwise have rendered; and we know, further, from the absolutely undisputed testimony of the witness Stephens, either by positive fact or circumstances, that he, at least, was influenced by such discussion to render a verdict against appellant for a greater amount than he would have done had not the question of attorneys' fees been brought up. "Wle say that the evidence as to these matters is absolutely without,dispute, and that there was no issue of fact for the trial court to determine in that connection, because he could not, on the theory of the exercise of his sound judicial discretion, absolutely disregard affirmative and unimpeached testimony on the point, and his action in doing so cannot be held to be the exercise by him of a sound judicial discretion such as this court cannot review. If there had been no- question of fact in this connection for the court to determine, or, rather, if there had been any dispute about the facts, then the trial court would have had the right to determine that dispute in favor of the jury’s verdict, and this court would not hesitate, in the absence of a clear showing of abuse, to uphold the trial judge’s action on such question of fact. But, since it affirmatively appears from the testimony that the juror Stephens, if none others, was influenced, improperly, to render a verdict greater than he knew or felt should have been rendered in this matter, we are compelled to exercise our authority, and hold that the trial judge abused his discretion in not setting aside this verdict. The appellant was entitled to a trial by jury composed of twelve men, and, unless some one or more of that number were legally excused before the verdict was reached, there could have been no verdict against appellant without ■ the concurrence of all twelve men; and' if any man on the jury was influenced to render a verdict finally against appellant in excess of what he believed to be just and right and supported by the evidence and the law, as charged by the trial court,' then such verdict against appellant was not the verdict of a jury composed of twelve men, based upon the evidence before the jury and the charge as given by the judge. Suppose it had been alleged in the plaintiffs’ petition in this case that he had bound himself to pay one-half or one-third of his recovery, whatever it might be, to his attorneys for their services in his behalf, and should have prayed for such amount as attorneys’ fees against defendant. Certainly the trial court would not only have sustained an exception to such allegation and prayer, but would have stricken the allegation from the petition, in order that it might not be brought to the attention of the jury; and suppose that it had been attempted by appellee to introduce evidence to the effect that he had agreed to pay his attorneys any part of his recovery, or any certain sum as attorney’s fees for representing him in the action, would it be supposed for a moment that the trial judge wo'uld permit any such testimony? If not, why not? Certainly because attorneys’ fees constitute no part of the measure of damages in such cases, and therefore would not be proper to be pleaded or shown; and yet it is contended here, in effect, by appellee, that notwithstanding the impropriety of this matter, and notwithstanding, also, the fact that the juror Stephens admits that he, ah least, was influenced by this improper conduct to the prejudice of appellant, still this court ought not to disturb the judgment, because it was a matter within the discretion of the trial court. Followed to its logical conclusion, such an argument would bring us to hold that the verdict of the jury in this case, regardless of the extent to which it might have been improperly influenced, would be binding on appellant, provided it got by the trial court, and that this court would be powerless to interfere.

In conclusion, we hold that wherever it is made affirmatively to appear, and without dispute, that a jury has been guilty of misconduct in reaching a verdict, and, further, that it is reasonably certain and undisputed from the evidence on the point that such misconduct influenced the jury, or any member thereof, to render a verdict for a larger amount than would have been rendered but for such misconduct, that the trial judge should in such instance, upon proper motion timely made, set aside such verdict, and grant the complaining party a new trial; and, where the trial judge fails 'to do so, his failure is reviewable by the appellate courts of this state, and, if these matters clearly appear on appeal, the action of the trial judge will be reviewed and reversed. • •

As this case must be reversed on account of the misconduct of the jury, above discussed, we shall briefly dispose of the other assignments of error for1 the information of the trial court upon another trial.

The first and second assignments complain of the action of the court in admitting testimony showing that appellant’s right of way ivas not fenced where the accident occurred, and the contention of appellant in this connection is that its failure to fence its right of way was not negligence as to appellee, and that evidence showing its failure to fence was entirely irrelevant and immaterial.

It is true that appellant was not required” by law to fence its right of way, in the discharge of any duty to appellee, but in passing upon the question of the negligence of the foreman in charge of the hand ear at the time of appellee’s injury., in causing the same to be run at the rate of speed at which the same was being run, we think that it would be relevant and material to show that the right of way was not fenced, because we think that the foreman might reasonably have anticipated that cattle might be upon the track, and' that the hand car run at a high rate of speed, as alleged by appellee, might come in contact with such cattle. This is the only reason for the admissibility of such testimony, and for that purpose the court did not err in admitting it.

While the third assignment of error shows that the action of the court there complained of was not correct, at the same time no reversible error in that connection is shown, but upon another trial the court should not permit evidence with reference to the matter there complained of. It is entirely immaterial.

With reference to the fourth assignment of error, we think that the court upon another trial should not permit the introduction of evidence as complained of in this assignment, if the same should be again of-' fered. The acts and conduct of the foreman in charge of the hand car can be affirmatively shown, as well as, the rate of speed at which he was causing the car to be run, and from this the jury can draw its conclusion as to whether there was negligence on the part of the foreman, and as to whether he purposely drove the car against the cow on the occasion in question, and the opinion of the witness Young of the conduct of the foreman and his recklessness, etc., should not be put before the jury, which was, in substance, done, as complained of in this bill.

No error is pointed out by appellant’s fifth assignment, in view of the issue of emancipation made by appellee in his petition.

By- its sixth assignment appellant complains of the action of the court in permitting the-witness Yanderh'all to testify that plaintiff, while confined to his bed some days after the accident in question, complained of his injury hurting him, and that it bothered him 'in getting around, and practically the same question is raised witli reference to the testimony of the witness Harmon Wade as complained in the seventh assignment of error.

In connection with these assignments, we think it will suffice to say that the rule is well settled in this state that mere statements, on the part of a person injured, to the effect that his injuries cause him suffering and pain, and that they prevent his being able to get around, etc., are not admissible; but exclamations of pain and suffering, which are explanatory of the plaintiff’s condition a.t the time made, and done to show pain and suffering at the very time, are always, admissible, for the reason that such exclamations are said to be outward expressions of inward existing pain. There are some parts of the testimony pointed out in these two assignments that should not have gone to the jury, and we are sure that the learned trial judge, without further discussion of this question by us, will correctly determine what portion of the testimony here complained of - should go to the jury upon another trial. Ry. Co. v. Wheeler, 41 S. W. 517; Ry. Co. v. Martin, 26 Tex. Civ. App. 231, 63 S. W. 1089.

The ninth assignment of error has no merit, and the court did not érr in refusing to give the charge requested by appellant, complaint of which is there made.

By the tenth assignment of error appellant complains that the verdict of the jury is grossly excessive. As' before stated, the amount of the verdict was $2,500, and the record shows there was a sharp contest and controversy in the evidence regarding the extent of appellee’s injury. There is evidence for appellant which would tend strongly to show that the injury complained of was not a serious and permanent • injury at all, while, on the- other hand, testimony for ap-pellee would indicate that- the injury is permanent in a sense, and that it will impair the ability of appellee in the future to earn money, etc. However, in view of the disposition that we have made of the case, and the probability of a new trial, it would not be proper, perhaps, for this court to further discuss this assignment. . ...

• This disposes of all the assignments, and, believing that the eighth assignment points out reversible error, the judgment of the trial court is reversed, and the cause remanded for a new trial.
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text:
    AMERICAN INDEMNITY CO. v. HUBBARD.
    (No. 8644.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 26, 1917.
    Rehearing Denied June 23, 1917.)
    i. Master " and Servant t&wkey;411 — Injuries to Servant — Workmen’s Compensation-Amount oe Recovery. ' ' .
    Under Acts 33d Leg. c. 179, -pt. 1, .§§ 10, 15, and part 4¡ § 2 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246Z?, 5246nnn, 5246yyyy), as to. payment of, compensation and liability, of indemnity companies, an injured employé suing an indemnity company in which the employer was insured, ■ in the absence of agreement, is entitled to judgment in lump sum for the compensation already due and for weekly installments during the balance of the time in which he is entitled ' to compensation, ’ but not to a lump sum judgment for the whole 'period.
    2. New Trial <&wkey; 108(4) — Grounds—Newly Discovered -Evidence — Sufficiency.
    .In a servant’s - action for injuries wherein he obtained judgment, newly discovered testimony,' as lto which due diligence had been exercised, that before his alleged injuries he complained of the condition on account of which he sued was sufficient to require the granting of a new trial.
    3. Pleading &wkey;>8(2) — Conclusions—Workmen’s Compensation.
    In an action against an indemnity company wherein the employer was insured, allegations that the employer did not fall within the exemptions from the operation of the act, and that plaintiff was an employé within the meaning of the act, and was entitled to compensation, are those of conclusions of the pleader, lind are insufficient even as against general demurrer.
    (Ed. Note. — For other cases, see Pleading, Cent. Dig. § 13.]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Action by J. B. Hubbard against tbe American Indemnity Company and another. Judgment for plaintiff, and tbe Indemnity Company appeals.
    Reversed and remanded in part.
    McMurray & Gettys, of Decatur, for appellant. Ratliff & Spencer, of Decatur, for ap-pellee.
   BUCK, J.

Suit was instituted by appellee in tbe district court of Wise county against appellant and tbe Lone Star Gas Company for damages in tbe sum of $7,350. He alleged that tbe Lone Star Gas Company was a corporation owning and maintaining a gas pipe line in and through Wise county and doing a general gas business in said county, and that tbe defendant American Indemnity Company was an. insurance corporation doing a general insurance and workmen’s compensation business in tbe state. He alleg-' ed that be was employed by tbe Lone Star Gas Company to walk and inspect its gas line and right of way from Decatur to Al-vord, and in tbe discharge of such duties it was incumbent on him to climb all banks, walks, grades, and ditches over and through which said pipe line ran, for tbe purpose of inspecting tbe same, and that while . so engaged on October 6, 1915,' and while climbing tbe bank, at Scott’s Branch, which was-alleged to be steep and almost perpendicular, be fell and sustained injuries of a serious and permanent character, especially, to bis liver, abdomen, bowels, and stomach, capsing and resulting in hernia. He further alleged that by reason of such injuries he suffered both physical pain and mental anguish, and had been totally incapacitated from performing labor of any kind, either physical or mental, or from earning a livelihood by any means; that the Oas Company had by notices made and published informed the plaintiff and its other employés that said company had provided for payment for any injuries that might be sustained by its employés under the terms and conditions imposed by the Employers’ Liability Act of the Thirty-Third Legislature, chapter 179 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), and that plaintiff had knowledge of said conditions, and, knowing the said gas company had so provided for compensation, fully agreed and accepted said employment and continued to work for said gas company, etc. He further alleged:

“That the Lone Star Gas Company did not and does not fall within the exemptions from the operation of the act of the Thirty-Third Legislature (chapter 179, § 2, part 1), and that as such employer not exempt it was the holder, of a policy with the American Indemnity Company, duly licensed, providing for the compensation in accordance with the said act of the Thirty-Third Legislature; that plaintiff was an employé within the terms and meaning of that word as defined in section 1, pt. 4, and. that as such employé he met with accidental injuries as hereinafter set forth, and on account of which he was and is entitled to the compensation claimed and the payment of which has been refused.”

Plaintiff alleged that he, at the time of his injuries, was receiving an average wage of $17.50 per week; that defendants gas company and indemnity company on the happening of the' accident had been duly notified thereof, but had refused to pay him the weekly compensation as provided in the act aforementioned ; that he had referred the matter to the Industrial Accident Board created by said act of the Thirty-Third Legislature for final ruling and decision, and that said board had proceeded in accordance with the provisions of said act to dispose of and finally determine the question of injury and compensation of plaintiff, and that said board did dispose of and determine such questions, but “that one of the interested parties hereto failed and refused to abide by said decision and decree of said accident” (evidently meaning Accident Board). Defendant Lone Star Gas Company answered by general demurrer and by plea of misjoinder of parties defendant, and by general denial. Defendant American Indemnity Company pleaded the general denial and misjoinder of parties defendant, and denied generally and specially the allegations in plaintiff’s petition contained. The court overruled the American Indemnity Company’s exceptions, to which said defendant excepted. The court peremptorily instructed a verdict in favor of the Lone Star Gas Company, but submitted the case to the jury as to the defendant American Indemnity Company under a general charge. The verdict of the jury was in favor of the Lone Star Gas Company in response to the peremptory instruction, and against the American Indemnity Company: (1) For damages sustained up to the time of the trial, $355.50; and (2) for further damages $10.50 per week for 87 weeks. The court entered judgment for the plaintiff against the defendant American Indemnity Company in the sum of $1,260, and the indemnity company appeals.

Under its tenth assignment, appellant urges error in the trial court’s judgment for the full amount awarded in the verdict as a present, immediate recovery of same, as a lump sum, and we are of the opinion that this assignment must be sustained. Under part 1, § 15, of this act contained in the Acts of the Thirty-Third Legislature, Regular Session, it is provided that in cases where death or total permanent disability results from an injury, the liability of the association may be redeemed by payment of a lump sum by agreement of the parties thereto, subject to the approval of the “Industrial Accident Board.” But in the absence of such agreement, as we construe the provisions of the act, plaintiff, when entitled to recover by suit, would be entitled to judgment for the aggregate weekly stipend to date of trial, and as to the remaining weeks for which the jury should find plaintiff was entitled to recover a judgment should be rendered for such amount, payable weekly. Part 1, § 10, of the act reads as follows:

“While the incapacity for work resulting from the injury is total, the association shall pay the injured employé a compensation equal to 60 per cent, of his average weekly wages but not more than fifteen dollars, nor less than five doL lars, a week, and in no case shall the period covered by such compensation be greater than four hundred weeks.”

2. Part 4, § 2, is as follows:

“Any insurance company, which term shall include mutual and reciprocal insurance companies lawfully transacting a liability or accident business within this state, shall have the same right to insure the liability to pay the compensation provided for by part one of this act, and when such company issues a policy conditioned to pay such compensation the holder of such policy shall be regarded as a subscriber so far as applicable under this act; and when such company insures such payment of compensation it shall be subject to the provisions of parts one, two and four and of sections 10, 17 and 21 of part three of this act, and shall file with the commissioner of banking and insurance its classification of premiums none of which shall take effect until the commissioner of banking and insui’ance has approved same as adequate to the risks to which they respectively apply and not greater than charged by the association, and such company may have and exercise all of the rights and powers conferred by this act on the association created hereby but such rights and powers shall not be exercised by a mutual or reciprocal organization unless such organization has at least fifty subscribers, who have not less than two thousand employés.”

The liability of the Texas Employés’ Insurance Association established, by this act is for the payment of an ascertained amount weekly, and the liability of an insurance company transacting business and issuing a policy of insurance as provided in section 2, part 4, would be controlled by tlie terms of so much of tbe act as applies to tbe liability of tbe association. This error, however, would not call for a reversal of tbe judgment, but merely for a reformation thereof, but since, because of other errors presented, and which will be considered later, the judgment will be reversed, we call attention to this error in view of another trial. ■

One of the issues of fact presented in the record was as to the question of the permanent disability vel non of the appellee of the nature and extent of the injury, and whether or not the condition of inguinal hernia which the plaintiff claimed to have and to have resulted from the alleged accident, if it existed at all, existed prior to the alleged fall and injury, or arose by reason of such fall and injury. Plaintiff testified:

‘Tt is not a fact that about two years before this injury I claimed to have this hernia or rupture. I did not tell old man Gibson two years before that I was ruptured. I claimed that about two years before that I fell off a log, and hurt my side but did not claim to be ruptured. I was off two days and got paid for that.”

The witness S. B. Gibson testified as to this matter:

“I have known Mr. Hubbard about five years; ever since he has been here in Decatur. I don’t know as I had a talk with him a couple of years ago about his condition. Once we wanted to carry out a split sleeve and put it on, and he just made the remark that we would have to lift it; that he could not; he was ruptured. That was something like two years ago; I couldn’t say just how long. He said the rest of us had to do the lifting; ho couldn’t do it; he was ruptured, and could not lift.”

As one of the grounds of appellant’s motion for new trial, it was alleged that it had discovered since the trial the testimony of three witnesses, to the effect that plaintiff had the injury and hernia complained of at the time of the trial prior to the date of the alleged injury, and that plaintiff had admitted to these witnesses prior to the trial the existence of such injury and hernia. Attached to this motion were the affidavits of said witnesses, to wit, F. R. Dodds, Alfred Rankin, and N. N. Altman. Dodds swore that in June or July, 1914, when a certain pipe was about to be lifted onto a wagon, and when said Hubbard was present, said Hubbard stated that the rest of us would have to lift the pipe; that he could not lift it, as he had ruptured himself; that at another time when a blow-out had occurred on the gas line, affiant had a conversation with the said Hubbard at the reporting box back of the jail in Decatur, and said Hubbard was complaining of his right side, and asked affiant to feel it, and affiant did feel said side and felt a knot on the right side in front and just above the right groin, which knot or protrusion felt or appeared to be fully as large as a hen egg; that said Hubbard remarked then, “That is what I got when I fell on that-log;” that affiant then asked him why he did not lay off and rest until that side quit hurting him, and said Hubbard replied that he was no rabbit; that he was going to walk the line if it killed him; that this conversation took place about May or June, 1915.

Rankin’s affidavit was to the effect that he was talking with the plaintiff some time in November, 1912, at the latter’s farm, and in the course of the conversation the plaintiff told him that if he did not get better, he was going to have to quit the line; that he was “tore up inside.” That affiant was not sure that he said he was ruptured, but that was the idea affiant got from what plaintiff said.

Altman swore that on several occasions prior to October, 1915, he heard Hubbard complain of his stomach and side, and make the remark several' times that he was “tore up in his side.”

We are of the opinion that the court erred in not granting a new trial because of this newly discovered evidence. Proper averments were made in the motion as to due diligence to discover such testimony before the trial, and we think the testimony was material, and was not merely of an impeaching nature, as is urged by appellee. It is a matter of general knowledge among lawyers that persons who have knowledge with reference to a case pending, or on trial, will refrain from disclosing the same because they do- not wish to be witnesses. But after the trial the restraint is removed, and they will talk more freely. While the question of whether or not the trial court should grant a new trial for newly discovered evidence is a matter largely within the discretion of such trial court, and the appellate court will not reverse a cause unless it is made to appear that such discretion has been abused, or that the appealing party has been denied a substantia] right by reason of the overruling of the motion for new trial, yet we think, in.this case that, in view of the closely contested issue as to the condition of the appellee’s health prior to the alleged injury, and as to whether he in fact had, prior to October 6, 1915, the hernial trouble or rupture that he alleged was due to the injury from- the fall on said latter date, the court erred in not granting a new 'trial. As was said by our Supreme Court in the recent cáse of Huggins v. Carey (Sup.) 194 S. W. 133:

“It must, of course, be and is the settled rule that a new trial should not be granted to secure evidence whose only effect would be to impeach a witness. However, it must be admitted to be also well settled that, though the newly discovered evidence impeaches and contradicts, this fact will be untenable as an objection to the proposed evidence, as to granting a new trial in order to secure it, where it tends to prove facts material to one of the issues in the case.” Railway v. Forsyth, 49 Tex. 171.

In view of another trial, it might be well to say we are also of the opinion that, even as against a general demurrer only, the allegations as to the liability of the appellant, contained in that paragraph of the plaintiff’s petition quoted hereinabove, were insufficient, and that in order to show the liability of the appellant under the policy of insurance issued by it, the general terms at least of the policy should have been alleged in order that the court might be advised upon the reading of the petition of the facts relied upon by plaintiff to establish the defendant’s liability. We are of the opinion that this paragraph is subject to the criticism and objection made by the defendant below that it stated the conclusions of the pleader rather than the averments of fact.

For the reasons indicated, the judgment of the court in so far as it authorizes a recovery against the appellant is reversed, and the cause remanded. The judgment in favor of the defendant Lone Star Gas Company, no objection having been made thereto, is left undisturbed.

Reversed and remanded in part; undisturbed in part.

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