text:
    JARNAGIN et al. v. GARRETT et al.
    No. 4441.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 21, 1934.
    Rehearing Denied March 1, 1934.

      Sarah T. Hughes, of Dallas, for appellants.
    Clark, Harrell & Clark, of Greenville, and H. D. Garrett, of Emory, for appellees.
   JOHNSON, Chief Justice.

H. D. Garrett was county judge of Rains county for two terms- from, Jañuary 1, 1919, to December 31,1922. On April 9,1920, H. D. Garrett, as such county judge, appointed S. T. Cates guardian of the estate of Elgin, Elmer, and Melvin Jarnagin, minors. Inventory and appraisement was returned showing the estate to consist of an undivided interest in certain real estate valued at $1,065, personal property, $300, total $1,365. S. T. Cates qualified by taking the oath and executing guardian’s bond in the sum of $2,750, with A. J. Koon and O. H. Rhodes as sureties, approved same date. April 24, 1920, S. T. Cates filed application to sell the undivided interest of the wards in the real estate. May 12,1920, I-I. D. Garrett, county judge, entered an order authorizing the sale. Sale was made, and the guardian’s report approved, and the sale was confirmed May 21, 1920. The interest of Elmer and Melvin Jarnagin in the proceeds amounted to $833.34. H. D. Garrett did not, in the order authorizing the sale nor in the order approving and confirming the sale, require S. T. Cates, the guardian, to execute and file the special sale bond provided for in such sales of real estate, articles 4201 and 4216, R. S., and no such special sale bond was ever filed by the guardian. No order was ever entered by the county judge to require or cause the guardian to file an annual accounting in the estate. And no accountings were ever filed by the guardian. No order was ever entered requiring the guardian to give any bond in addition to the guardian’s general bond which he gave at the time of qualifying. After entering his decree confirming the sale of the real estate, May 21, 1920, H. D. Garr,ett, county judge, entered no further orders in the estate. When Elgin Jarnagin, the oldest ward, became of age, it appears he was settled by the guardian. Elmer Jarnagin became twenty-one years of age November 4, 1926, and Melvin Jarnagin became twenty-one years of age October 18, 1-931. On July 8, 1931, after previous order and notice, judgment was entered in the estate by J. H. Foster, then county judge of Rains county, removing S. T. Cates as guardian and holding him liable to Elmer and Melvin Jarnagin in the sum of their two-thirds interest in the personal property, and their interest in the proceeds of the sale of the real estate, and interest thereon, allowing a credit of $60 paid to Elmer Jar-nagin on October 1, 1928. Thereafter Elmer and Melvin Jarnagin filed suit in the district court of Dallas county, where they and S. T. Cates resided. The suit was against S. T. Cates and A. J. Koon and O. H. Rhodes, sureties on his general guardianship bond, seeking to recover the sum for which the guardian had been held liable in the order of the county court o-f Rains county. Upon trial of the case before the court without a jury, judgment was entered in favor of plaintiffs against S. T. Cates for the full amount sued for, and in favor of each of the plaintiffs, respectively, in the sum of $100 each, and interest thereon; against the sureties on the general guardianship bond, this $100 each being the value of the interest of the wards in the personal property; and the court denied any recovery against .the sureties as to the proceeds of the sale of the real estate, which judgment was in accord with holding of the Supreme Court. American Indemnity Co. v. Noble, 235 S. W. 867. The surety, O. H. Rhodes, paid the judgment rendered against him. Execution was issued on the judgment against S. T. Cates and the surety A. J. Koon and returned “nulla bona.” It was further agreed that up to 1922 S. T. Cates was solvent and able to account to his wards for the proceeds of the sale of the land. If it may be inferred from the return on the execution that S. T. Cates and the surety A. J. Koon are now insolvent, the facts do not show or indicate when either of them became insolvent.

This suit was filed October 19, 1932, by Elmer and Melvin Jarnagin in the district court of Rains county against H. D. Garrett, former county judge of Rains county, and sureties on his official bond, seeking to recover damages in the amount received by S. T. Cates as guardian, from the sale of plaintiffs’ interest in the real estate and interest thereon from the date of sale, less the credit of $60 paid to Elmer Jarnagin; it being alleged plaintiffs sustained such loss and damages as the result of the alleged failure of H. D. Garrett in his official capacity to perform the statutory duties required of him in the premises as county judge of Rains county, and in the particulars hereafter stated. Defendants answered by general demurrer, special exceptions, general denial, and special pleas. The trial was had to the court without a jury upon an agreed statement of facts substantially and in effect as above recited. Judgment was entered for defendants, denying plaintiffs any recovery, and from which judgment plaintiffs Rave perfected their appeal.

It is the contention of appellants that they have suffered loss and damages in the respect and to the amount of money that they would have received from their guardian in. settlement with him on account of the proceeds received by him from the sale of their interest in the land,,had it not been for his insolvency, or which they would have received from the sureties on his special sales bond had he been required to have given the special .sales bond provided by statute, Acts 1913, chapter 151, p. 321, R. S., articles 4201, 4216, to be given by guardians upon the sale of real estatei that such loss and damages were by them sustained as the result of the alleged failure of H. D. Garrett acting in his official capacity as county judge of Rains county to perform his statutory duties in reference thereto in each and all the following particulars:

“(1) In that H. D. Garrett failed to require the guardian to file the special sales bond provided by the statutes (last above quoted) at the time of ordering and confirming the sale of the wards’ real estate, or at any subsequent time during said County Judge’s term of office; '
“(2) In that H. D. Garrett failed to require the guardian to file annual accounts as provided by articles 4225, 4226 and '4227, R. S.;
“(3) In that H. D. Garrett failed to annually examine into the condition of the estate and require the guardian to execute another bond as provided by article 4141, R. S.”

We shall first discuss appellants’ propositions Nos. 2 and 3. They relate to the alleged duties of the county judge subsequent to his failure to require the guardian to file a special sales bond at the time he entered the order authorizing and the decree confirming the sale of the real estate. It is argued by appellants, in substance, that, had the guardian been required to file annual accounts, as provided by statute, or had H. D. Garrett annually examined into the condition of the estate as required by article 4141, the fact that the guardian had not filed the special sales bond and the fact of his insolvency would have been timely discovered, and that it would thereupon have been the further duty of the county judge to have required the guardian to execute a bond protecting the interest of the wards in the proceeds received by the guardian from the sale of the real estate.

That the execution issued on the judgment rendered June 21, 1932, in the district court of Dallas county was rendered “nulla bona” would not shqw or support an assumption that the guardian was insolvent prior to the expiration of H. D. Garrett’s last term of office, December 31, 1922; and the record does not show that H. D. Garrett failed “to annually examine into the condition of the estate” further than as may be reflected by the facts that the guardian failed to file his annual account and was not cited to do so. But, should it be assumed that the guardian became insolvent during the time H. D. Garrett was in office, and that had he been cited to file an annual account, he would have made it, revealing his insolvency, or, had Garrett otherwise by annually examining into the condition of the estate have discovered the guardian’s insolvency; the further question is presented, Gould the county judge then have protected the wards’ interest in the proceeds of the sale of the land by requiring at such subsequent date the guardian to execute arid file the special sales bond which should have been filed at the time of entering the decree confirming the report of sale? It is our opinion that the question should be answered in the negative. Until the Acts of 1925, c. 119, page 303, Acts of. 39th Legislature (article 4201a, Vernon’s Ann. Giv. St.), which was after Garrett’s last term of office expired, no provision was made for the subsequent filing of the guardian’s sales bond when none was filed at the time of the sale. Hence, had it been called to the county judge’s attention, by any of the means complained of by appellants, or otherwise, that the special sales bond had not been filed at the time of the sale of the land, and that by reason thereof the interest of the minors was not protected, H. D. Garrett as county judge at such subsequent date had no authority of law to require the guardian to execute and file the Special sales bond. Attention is here directed that this suit is not predicated upon anything referable to the liability of the guardian’s general bond. Its sureties are not liable for funds arising from the sale of real estate, and their solvency is not in question; by reason of which the special liability imposed by article 4141 attaching to the official bond of the county judge for damages or loss resulting to the estate of the ward through the negligence of the county judge to perform the particular duties in said article pointed out is not applicable to the facts we here have under consideration.

So, if H. D. Garrett is liable to plaintiffs on bis official bond, such liability must necessarily be predicated upon general liability, and for loss resulting to appellants from the failure of the county judge to perform his duties as provided by articles 4201 and 4216, and in the particular of failing to require the guardian to file at the time of the sale the special sales bond. Appellants contend, in substance, that it was the duty of the county judge, in his order authorizing the sale, to require the guardian to file the special bond, and that it was the duty of the county judge in confirming the sale to have satisfied himself that the guardian had filed such bond; that the duty of “requiring” such bond on the part of the county judge was ministerial in its nature as distinguished from judicial acts, and that H. D. Garrett’s failure to perform such duties resulted in the loss complained of by appellants, and for which liability attached to Garrett’s official bond. We are of the opinion that the county judge’s duties with regard to the order and decree mentioned, and in the respects complained of, were concerning matters involving the exercise of judicial discretion, and that his failure to have such orders comply with the provisions of law was a judicial error as distinguishable from a ministerial act. A ministerial act is defined in Commissioner v. Smith, 5 Tex. 471, 479: “The distinction between ministerial, and judicial and other official acts, seems to be, that where the law prescribes and defines the duty to be performed, with such precision and certainty as to leave nothing to the exercise of discretion, or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed merely ministerial.”

The pertinent provision of article 4201 stating the terms and conditions of the county judge’s order authorizing the sale of real estate recites: “4. It shall require the guardian to file a good and sufficient bond, subject to the approval of the court, in an amount equal to twice the amount for which such real estate is sold.”

The words “good and sufficient bond” relate to its terms and conditions and the solvency and,sufficiency of its sureties. It is not the duty of the county judge merely to “require a bond,” but he is charged with the duty to enter, that is, formulate, as distinguishable from transcribe, an order requiring a bond of a particular character, “a good and sufficient bond subject to the approval of the court.” His duty with respect to entering the order requiring this character bond does not terminate with the entering of the order ; it continues to the final- order confirming the report of sale, article 4216, R. S., wherein he is required to satisfy himself from the facts that the guardian has filed such character of bond,, and if thereafter he concludes that it is good and sufficient, to approve it. The performance of these duties involves the exercise of judicial discretion, Rains v. Simpson, 50 Tex. 495, 32 Am. Rep. 609, and for' the failure or erroneous performance of which no liability attaches, 25 Tex. Jur. § 16, p. 254.

In disposing of appellants’ propositions as above indicated, we have done so from the viewpoint of appellants’ assumption that the facts show that the appellants have sustained loss and have been damaged as the direct and proximate result of the failure of the county judge to perform the statutory duties in the respects complained of. But we are not to be understood as holding that the facts support this assumption or conclusion. Appellants did not absolutely lose their land by the purported sale. It is held that the failure to file the special sales bond renders the sale voidable and subject to being set aside at the instance. of appellants, if they so choose. City of Tyler v. First National Bank of Beaumont [Tex. Civ. App.) 46 S.W.(2d) 454, 456.

Finding no error presented, the judgment of the trial court is respectfully affirmed.


source: Caselaw Access Project

author: LESLIE, Justice.

license: Public Domain

text:
    SWISHER-ORRISON CO. v. W. E. ROGERS & SON.
    No. 1096.
    Court of Civil Appeals of Texas. Eastland.
    March 16, 1934.
    Church, Read & Bane, of Dallas, Cunningham & Oliver and Amo Fitzpatrick, all of Abilene, for plaintiff in error.
    Frank E. Smith, of Abilene, for defendants in error.
   LESLIE, Justice.

The Swisher-Orrison Company, a corporation, brought this suit against W. E. Rogers & Son, a partnership, to recover $232.60, balance due on an open account for merchandise sold them. The account was itemized and verified. The defendants answered by general demurrer, general denial, and cross-action. In the answer it was specially alleged: (1) That the plaintiff, through its duly authorized agent, assured defendants that if said cigars were not salable or merchantable in defendants’ territory, that plaintiff would take the cigars back and refund to defendants any money which they might he out on the purchase price of the cigars, as well as expenses incurred by defendants in taking on this new line of cigars; (2) that plaintiff warranted the cigars would correspond with samples exhibited, and that each shipment would correspond in quality with the first one made; (3) that -plaintiff represented to defendants that the goods were merchantable and that there was a demand for them.in the defendants’ territory; and that sales assistance would be rendered the defendants if they would order the cigars. It was further alleged that such promises, representations, and warranties were fraudulently made to induce defendants to act thereon, and that the defendants, believing the same, ordered certain shipments of said cigars which they were unable to market. That the promises and representations were false, and the warranties breached and unfulfilled by the plaintiff.

Upon these issues a trial was had before the court and jury and upon the answers of the jury to special issues, judgment was rendered that the plaintiff take nothing by the suit, and that the defendants recover from the plaintiff the sum of $49.67, expenses and losses incurred in undertaking to handle the cigars. From this judgment, the plaintiff prosecutes error to this court.

There are many assignments of error in the brief of the plaintiff in error, and a still greater number of propositions based thereon. The case has been well briefed by the attorneys for the respective litigants, and it will be unnecessary to discuss each assignment separately since they fall into groups addressed to single contentions arising on the trial, and recurring -in the progress of the same, as the identical point is covered -by the testimony of a different witness, or a new ruling of the court.

Based upon the orders, there were three' shipments of the cigars, and the third shipment valued at $232.60 is the one here in suit. The others appear to have been paid for. The account sued on is itemized and verified under article 3736, R. S. 1925, as amended by Acts 1931, c. 239, § 1 (Vernon’s Ann. Oiv. St. art. 3736). The answer is not verified, and, therefore, does not challenge under said article, or subdivision 11 of article 2010, R. S. 1925, the correctness of any item of the account. Among other answers to the alleged indebtedness, the defendants pleaded that the merchandise shown in the verified account and involved in this suit had been returned to the plaintiff under instructions of the plaintiff’s duly authorized agent, and that by reason of such return the indebtedness had been discharged.

Under the facts alleged no counteraffidavit was required of the defendants in order to enable them to present the defense urged. American Druggists’ Synd. v. Holt Drug Co. (Tex. Civ. App.) 272 S. W. 508; Queen City Motor Co. v. Texas Auto Supply Co. (Tex. Civ. App.) 241 S. W. 212; Moore v. Powers, 16 Tex. Civ. App. 436, 41 S. W. 707; 1 Tex. Jur. § 61, pp. 357, 358.

While a verified account is prima facie proof of its correctness, etc., it does not preclude the defendant from denying liability therefor, and that, too, in the absence of a counteraffidavit. Under appropriate pleadings a defendant may show that the account has been paid in whole or in part, or may assert a counterclaim. Such is the holding of the above authorities, and the numerous cases cited therein.

Many of the plaintiff in error’s contentions are grounded on the proposition that J. B. Abies, the agent of the plaintiff, had no authority to represent his principal in making the foregoing representations and warranties, and to authorize and direct the defendants to return the cigars if they were unable to sell them. The testimony shows that the plaintiff was endeavoring to introduce a new and unadvertised line of cigars to the smoking public. To accomplish that purpose the plaintiff appointed said Abies exclusive sales agent in three states, including the state of Texas. It was his duty and undertaking to sell the plaintiff’s cigars in said territory, and to attract to said product those who consumed such. In a sense, building up a patronage for' these new and untested cigars involved the drawing away of patronage from other and well-established brands. Under these circumstances the plaintiff, through said agent Abies, appointed the defendants as sole distributors of said goods over a scope of territory including and surrounding Abilene. From the testimony it appears that the cigars did not appeal to the smoking public, and could not be profitably handled by the distributors. The last shipment was therefore returned under the directions of said agent to the plaintiff. At least, such is the contention of the defendants in error.

To. summarize the defendants’ contentions, the alleged agreement was to the effect that if the cigars proved unmerchantable and were without demand on the part of the smoking public, the same could be returned to the plaintiff and would be by it received, and the plaintiff would credit defendants for same, and would reimburse them for such expenses or losses as they had incurred in undertaking to handle these cigars.

The record discloses no express authority to said agent to thus direct the return of the cigars in such an event, but the testimony in general, and the nature of the employment, show conclusively that he had implied authority as the general sales agent of the plaintiff to do so. That being the case, the defendants were within their rights in returning the cigars in accordance with the contract made, and in that manner satisfying the alleged obligation for the cigars. Eastern Mfg. Co. v. Brenk, 32 Tex. Civ. App. 97, 73 S. W. 538; Clayton v. Western Nat’l Wall Paper Co. (Tex. Civ. App.) 146 S. W. 695; Townsend, Townsend & Co. v. South Plains Monument Co. (Tex. Civ. App.) 257 S. W. 648; Goddard v. Lexington Motor Co., 63 Utah, 161, 223 P. 340; Roberts-Atkinson Co. v. International Harvester Co., 191 N. C. 291, 131 S. E. 757 (5); Oster v. Mickley, 35 Minn. 245, 28 N. W. 710; Deering v. Thom, 29 Minn. 120, 12 N. W. 350; Warder, Bushnell & Glessner Co. v. Pischer, 110 Wis. 363, 85 N. W. 968; 2 Tex. Jur., § 52, p. 446, 2 C. J., § 651, p. 920, § 233, pp. 597-599.

As we interpret the record, it conclusively shows that Abies had authority to authorize the return of the cigars under the circumstances, but, if there be any doubt as to this, the necessary effect of the jury’s findings in response to the issues establishes that fact and warrants our conclusion. The proposition to return if not salable related to the contract of sale which the agent had a right to make. In Merriman v. Fulton, 29 Tex. 97, 98, it is held to be well established that the principal is bound by the acts of his agent, done within the scope of his apparent authority, in dealing with innocent third persons, although such act may be in direct violation of his private instructions. This would seem to be an elementary proposition.

No objections were urged to any of the issues as being or containing general charges on the law of the case, and the objections urged are without merit. We do not have before us the question of contradicting or varying tlie terras of a written instrument by parol testimony. The suit was simply one upon a verified open account.

No issue of estoppel or negligence on the part of the defendants in unduly retaining the cigars was submitted by the court, or requested by the litigants. Hence, no such point is in the case. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

Many assignments raise the question of no evidence to warrant the submission of the respective issues. Such contention, however, was amply covered by assignments^ and propositions directed to the action of the trial court in refusing plaintiff’s motion for a peremptory instruction. However, these questions have been considered from both viewpoints.

With the general and exclusive authority in Abies to represent the plaintiff in selling the cigars in Texas and two other states, and with the implied authority in him to make for his principal the agreement or contract alleged and the jury’s finding that he, at the time of the sale, “guaranteed” that if the defendants found the cigars unmerchantable, that the plaintiff would take them up and credit the same on their account and refund the defendants any money or expenses they had incurred in talcing on said line, we are of the opinion that such facts, taken in connection with the others found by the jury, entitle the defendants to the judgment rendered.

We have considered each of the contentions made by the plaintiff in error, and are of the opinion that the law requires that they be overruled. For the reasons assigned, the judgment of tlie trial court is affirmed.


author: JOHNSON, Chief Justice.

text:
    ILLINOIS BANKERS’ LIFE ASSUR. CO. v. BYRD et al.
    No. 4574.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 1, 1934.
    Cunningham & Lipscomb, of Bonham, for appellant.
    T. M. Broadfoot and Couch & Couch, all of Bonham, for appellees.
   JOHNSON, Chief Justice.

Appellees, Mrs. Bettie E. Byrd, joined by her husband, Arthur- R. Byrd, plaintiffs, sued appellant, Illinois Bankers’ Life Assurance Company, defendant, in the county court of Fannin county, seeking to recover for alleged total and permanent disability suffered by Mrs. Byrd as the result of an accident, which plaintiffs claim to have been insured against under the terms of a policy of insurance issued to Mrs. Bettie E. Byrd by the Illinois Bankers’ Life Association and alleged to have been assumed by defendant company. The pertinent terms of the, policy provide:

“Should the Insured, while this policy is in full force and effect, become totally and permanently disabled' by accident and because thereof be wholly and permanently incapacitated for doing any labor or business, * ⅜ ⅜ he shall be entitled, if he elects, by making application on blanks furnished by the Association, in lieu of all benefits payable under this policy * * * to a sum equal to one-half its face value in full settlement.

A trial was had to a jury. On findings of the jury favorable to plaintiffs, judgment was entered in favor of plaintiffs and against defendant for the sum of $635, and from which defendant has perfected its appeal.

Under appropriate assignments of error the appellant contends that the court erred in refusing to submit to tbe jury its requested special issue No. 2, as follows:

“Is tbe plaintiff wholly and permanently incapacitated from doing any labor or business?”

In respect to this matter the court in its •main charge, and in connection with appropriate definitions of the terms used, submitted the following special issues:

“Question No. 5; Is the plaintiff, Bettie TE. Byrd, totally disabled by reason of her said alleged injury?” (Jury answered “Yes.”)
“Question No. 6: Is the plaintiff, Bettie E. Byrd, permanently disabled by reason of her said alleged injury?” (Jury answered “Yes.”)

It is thought that the questions submitted ¡by the learned trial judge, together with his -definitions of the terms “total disability” and “permanent disability,” properly submitted the issues raised with respect to extent as -well as the probable duration of the disability complained of. Further, it is thought that the issue in the form as requested by appellant is, in the circumstance, subject to the objection of being duplicitous. Texas Employers’ Ins. Ass’n v. White (Tex. Civ. App.) 32 S.W.(2d) 955.

It is further contended by appellant that the evidence is insufficient to suppoi’t a judgment for plaintiffs, and that the court erred in refusing defendant’s requested special issue instructing the jury to return a 'verdict for the defendant, for the reason that 'Mrs. Bettie E. Byrd testified that she could ■do some of her household work, such as to peel potatoes, darn her husband’s socks, and -.-such other work as she could do sitting down. :In this respect she further testified, in substance, that her occupation was that of a housewife, that she was not qualified to do any other character of work, except that she ¡had worked on the farm; "that she could not do any substantial part of her housework; and that if she tried to be on ¡her feet to amount to anything, it caused her to have restless nights. Her attending physician, Dr. J. C. Magness, in substance testified that the disability suffered by Mrs, Byrd was the result of injuries to her knee, commonly called a fracture, the complications of which he detailed and from which he did not think there was any chance for her to get relief; that her condition seemed to be growing worse all the time; and that she was more helpless now than a year ago. The accident occurred in May, 1931. It was the opinion of Dr. J. C. Joiner, the consulting physician, who examined Mrs. Byrd on August 29, 1932, as appears from ¡his testimony in the case, with respect to whether or not it was wise or prudent for her to do the work that she said she did, or the housework that she does do, that he had advised ¡her at that time not to work. “I told her she ought to stay off that limb if she wanted to get well. It was her only chance to get well.” And in his sworn report to the defendant company, which was introduced by plaintiffs, Dr. Joiner further states: “This fall left her with a crippled limb that causes her to have extreme nervous spells and sciatica. Improvement not at all likely as conditions are very unfavorable.” That it was his professional opinion that she was totally disabled and will continue to be wholly and permanently unable to engage in any gainful occupation or perform any work for money compensation.

That the assured, Mrs. Bettie E. Byrd, could and in fact did perform some of the duties pertaining to her occupation as a housewife did not establish as a matter of law that she was not “totally disabled” within the meaning of those words as used in the policy, and only presented a matter to be determined by the jury from the evidence of the whole case, for reasons stated by Judge Willson in Fidelity & Casualty Co. v. Joiner (Tex. Civ. App.) 178 S. W. 806; and by Judge Sharp in Winters Mutual Aid Ass’n v. Reddin (Tex. Com. App.) 49 S.W.(2d) 1095; 6 Cooley’s Briefs on Insurance (2d Ed.) 5536.

We have examined appellant’s other assignments of error -but are' not of the opinion that any of them present error.

The judgment of the trial c.ourt is affirmed.


author: O’QUINN, Justice.

text:
    INDEMNITY INS. CO. OF NORTH AMERICA v. WILLIAMS.
    No. 2503.
    Court of Civil Appeals of Texas. Beaumont.
    March 15, 1934.
    Rehearing Denied March 21, 1934.

      Barnes & Bames, of Beaumont, for appellant.
    D. E. O’Fiel and Tom C. Stephenson, both of Beaumont, for appellee.
   O’QUINN, Justice.

Appellee brought this suit in the district court of Jefferson county to set aside an award of the Industrial Accident Board made August 28, 1931, denying him compensation which he claimed by reason of injuries which he alleged he sustained on July 17, 1925, as an employee of the Gulf Refining Company at Port Arthur, Tex., which company carried compensation insurance with appellant. His petition contained the usual and necessary allegations in a suit of this nature. Appellant answered by general demurrer, several special exceptions, general denial, and specially pleaded the 6-month and 2-year statutes of limitation against appellee’s right to recover.

The demurrers and exceptions were overruled, and the case was tried to a jury upon thirty-eight special issues, upon their answers to which judgment was rendered in favor of appellee in a lump sum against appellant for 325 weeks at the rate of $11.67 per week, amounting (less 6 per cent, discount) to $3,567.25, with interest thereon at the rate of 6 per cent, per annum from February 28, 1983, the date of the judgment. Motion for a new trial was overruled, and the appellant brings this appeal.

The case is before us on thirty-one propositions based upon forty assignments of error. We shall not discuss them seriatim, nor all of them, but only such as are necessary for a determination of the controlling questions.

Appellant’s first assignment complains of the court’s refusal to give its requested charge for an instructed verdict. This is based upon the contention that the overwhelming preponderance of the evidence is .against the findings of the jury that appel-lee’s condition is due to any accidental injuries received by him in the course of his employment.

The record discloses that on July 17, 1925, appellee was an employee of the- Gulf Refining Company at Port Arthur in Jefferson county, Tex.; that at said date said company was carrying compensation insurance with appellant, which insurance covered ap-pellee. On that date appellee was injured while engaged in the work of his master. This injury was duly reported to the Industrial Accident Board by the Gulf Refining Company. It was agreed by the parties that appellee was receiving $2.80 per day, and that he worked 7 days per week, and that his average weekly wage was $19.60. Upon notice of the injury, appellant acknowl- . edged liability and paid appellee the sum of $62.28, taking a “compensation settlement receipt,” reciting that the payment covered '45 days’ total disability, and that it was for “all injuries sustained” by appellee by reason of the injury of July 17, 1925, and that his injuries had terminated. This receipt was dated September 5, 1925. When he received his injury, appellee was sent to the Mary Gates Hospital in Port Arthur, where he remained for some 2 weeks, the while being treated by the refinery company’s doctor, when he was sent to his home. His injuries consisted of severe burns about his head, face, arms, and legs. After some 7 weeks (52 days), he was sufficiently recovered from his burns to be and was returned to work, but was not put at the same kind of work that he • performed before the injury. He was given lighter work, various kinds, until August of 1927, when he was made foreman of a negro crew, which place he held until February 2S, 1931, when he was discharged or let out. During this time he received slightly less pay per day than he was receiving at the time he was injured. Since being discharged, he has not worked at anything, and we think the evidence supports his contention that he has not been physically able to have done any kind of physical labor. On May 20, 1931, he filed notice of injury and claim for compensation with the Industrial Accident Board. On August 28, 1931, the board denied his claim for compensation. He duly gave notice that he would not abide the decision or ruling of the board, and filed this suit to set aside said award, resulting in the judgment above mentioned.

At the time appellee received his injuries he was working in what was called the “Rankin Chamber” of a “500 Type still”— “High Pressure Stills.” He was knocking down or stoking coke used in heating the stills. The entrance to the chamber of the still was small — just about large enough to admit a man’s body. The coke (used as burning fuel in the heating and refining process) to be stoked was overhead, and, when appellee punched or knocked it, a “big-pile” of the coke suddenly gave way and fell on him, striking him on the head and face and contacting with his hands and legs. Ap-pellee testified that “they had spud bars to punch that coke down from the side of the still, and they had coke up right over the door, and I was inside and I punched the spud bar up and broke it loose, and by it being foul with water and steam, that’s where it fell. I was standing up punching it over my head (illustrating), and when I put the spud bar up there, it broke loose, and all that fire and stuff come down and I couldn’t get loose.”

He further testified: .

“Q. Was there or not fire in it? A. Yes, sir, there was fire in it.
“Q-. What was it that broke loose? A. Coke, but the fire was smothered by being water from the tophead.
“Q. Just what quantities or amounts of coke? A. Well, that was a great big piece of coke; it was big as any barrel.
“Q. Were you struck anywhere about the body or head by that? A. Struck about the head. (Exhibited head.)
“Q. Do you know how you got out of the place? A. No; Jeff Franklin say he pulled me out. I don’t know how I got out.”

Franklin testified that he pulled appellee out of the chamber, put him down by the outside wall, and went after the “boss.” There is no doubt that appellee from some cause had lost the use of his right hand, and had lost his left eye. Appellant strenuously insists that such loss was not caused .by the burns he received at the time in question, but in answer to special issue No. 10 the jury found that the bums were the “producing cause” of the injuries resulting in the incapacities. No good purpose could be served by our setting out the' voluminous evidence bearing upon this issue, hut we will say that, after carefully considering the record, we think the finding abundantly supported. The assignment is overruled.

Several assignments assert that, because of conflicts in the answers of the jury to special issues, no judgment should or could be rendered; that the answers were so inconsistent and contradictory as to destroy each other, and therefore no judgment could be based upon them.

In answering special issues 3 and 4, the jury found that appellee had suffered total incapacity to work, and that such incapacity was permanent. In answer to special issues 6, 7, and 8, they found that appel-lee had suffered 85 per cent, partial incapacity, and that such incapacity was permanent. It is contended that these findings are conflicting and destroy each other. We think the contention well taken. It is further contended that the finding in answer to issue 22 that, when appellee was discharged from the care of the physician treating him after his injury, he was suffering partial incapacity, and in ansrwer to issue 23 that during this partial incapacity his weekly earning capacity was $19.46, and it being agreed that appellee’s weekly earning capacity before the injury was $19.60, and the jury’s answer to special issue 4 found ap-pellee totally and permanently incapacitated, these findings were so contradictory as ±o not form any basis for a judgment. We ¡are inclined to agree with this contention, but think some of the apparent inconsistencies could be explained so as to not show them destructive of each other. Also it is (Contended that the answer of the jury to special issue 23 that during his incapacity after returning to work appellee earned $19.-46 per week, only 14 cents less than his agreed earning capacity before the injury, and in answer to issue 24 that appellee’s earning capacity was only 15 per cent, as compared with his earning capacity before the injury, that these findings were so inconsistent and contradictory as. to destroy each •other. This contention is sound. It is also ■contended that in answer to issue 33 the jurji. found that appellee’s disability was limited to the loss of the use of a hand and the loss of an eye, while in answer to issue 34 they found that his disability was limited to the right arm and left eye; hence these findings contradicted and destroyed each other. This apparent conflict comes from the fact that the evidence showed that, by reason of the burns on appellee’s right hand and forearm, the hand had so shriveled up, perished away and drawn and stiffened the hand and fingers as that he had lost the use of the hand. The left eye was totally blind because of the burns to it. We do not find any evidence to support a finding that the use of the right arm, as an arm is designated by law, was lost, but the arm was affected, of course, by the loss of the use of. the hand. So we do not think the conflict, if any, was such as to destroy the'effect of the findings mentioned.

The alleged conflicting answers discussed above were in response to special issues submitted based upon the various phases of the case made by the pleadings, and if it be conceded that they are inconsistent and even conflicting, still by reason of other findings on separate, independent, and controlling issues properly submitted, they were immaterial, and some of them without support in the evidence, and not at all necessary as findings upon which to base the judgment. In answer to issues, the jury found that appellee, by injuries sustained, suffered the loss of the use of his right hand and the loss of his left eye. And in answer to issue 33 they found that his disability was> limited to the loss of the use of a hand and the loss of an eye. The law, article 8306, § 12, provides specific compensation for the loss of an eye and a hand at 60 per cent, of the employee’s average weekly wages for 325 weeks. In view of the evidence, which abundantly supports the finding ,of the loss of the use of a hand (which equals the loss of the hand) and the loss of an eye, the court, under article 2211, R. S. (as amended by Acts 1931, 42d Leg., p. 119, e. 77, § 1 [Vernon’s Ann. Oiv. St. art. 2211]), was authorized to and properly did set aside the findings complained of as immaterial, inconsistent, and conflicting, and without support in the evidence, and rendered judgment on the findings as to the loss of the hand and eye.

The assignment that the court erred in granting judgment for compensation at the rate of $11.67 per week is overruled. The contention is that the wage should have been fixed at $9.69. This contention is based upon the argument that it was agreed that appellee at the time of liis injury was receiving $2.80 per day and working 7 days per week, and so was earning $19.60 per week. But, as appellee had not worked for the whole of the preceding year, or substantially the whole of the preceding year, then the weekly wage should have been found by multiplying the daily wage by 300 and dividing by 52, which gave $9.69 as the weekly wage. This contention is not sound. The agreement showed that an employee who had worked the whole of the preceding year received $2.80 per day. The agreement does not state that such employee worked 7 days per week, -but the undisputed evidence shows that appellee was working 7 days per week, and the agreement shows that he earned $2.-80 per day, or $19.60 per week. Upon that basis the average wage was $19.60 per week as used by the court But if the annual wage, $2.80 per day for 365 days, or $1,022, be taken and divided by 52, the average weekly wage is $19.65, 60 per cent, of which is $11.76. The judgment was not excessive.

Appellant’s thirteenth, fourteenth, and fifteenth propositions assert that the court erred in refusing its request for an instructed verdict because appellee’s claim for compensation was not filed with the Industrial Accident Board within 6 months after the accident, as required by law, and there was no pleading of good cause' for failure to so file said claim.

The accident resulting in appellee’s injuries occurred on July 17,1925. It occurred on the grounds of the employer, and said employer had actual notice of the injury at the time. The employer, the Gulf Refining Company, immediately reported the accident and injury to the Industrial Accident Board and to the insurance carrier, appellant. Appellant acknowledged liability, and for a time paid weekly compensation to appellee until it had paid the sum of $62.28, when appel-lee was discharged by the doctor in charge, and returned to work, as stated in the first part of this opinion. Appellee testified, and the jury found, that at the time he was returned to work he was incapacitated and could not do the kind of work he had done before the accident, and was put at different and lighter work, which, in various capacities, he performed until he was discharged on February 2S, 1931. He filed his claim for compensation with the Industrial Accident Board on May 19, 1931. He testified that since his discharge by his former employer he had sought work, but had not been able to secure any, for the reason that he was then, and ever since has been, unable to perform any kind of physical labor. All this he alleged in his petition. 1-Ie further alleged that “ * * ⅜ plaintiff was compelled to file his-written claim for compensation with the Industrial Accident Board of the State of Texas, which he alleges he did within six months-' from the date of said accident and injuries1 and upon the happening and accrual of total-disability. * * * ”

He further alleged: “This Plaintiff presents1 that since receiving his said injury on or" about the 17th day of July, 1925, that he: was severely burned and injured and sustained the injuries from which his present condition has developed, that after his burns- and other injuries had partially healed, that, the plaintiff herein was discharged from further treatment at the hospital, and was permitted to return to his home, where after' recuperating for a few weeks, he was required by said employer, under the terms and! provisions of Section 12a, of Article 830ft-of the Revised Statutes of Texas, and was-tendered employment reasonably suited to his-incapacity and physical condition, upon- the-premises of the plant of. the said Gulf Refining Company, his said employer at the time-when the said injuries were inflicted upon-' him; that the plaintiff worked and labored^ at said employment until sometime on or-' about the 19th day of May, 1931, or- within: the period of six months immediately preceding the same, when he became totally and. wholly incapacitated from laboring and working because of the condition of his body, righifc hand, and left eye, when on account of. ⅞⅜-physical incapacity and his inability to fur-1-ther work and labor, the plaintiff herein, wa$-' either obliged to quit his said employment; or that he was discharged' from his said' employment by his said employer; that there-after and since, the said plaintiff has-- Beem unable to work or labor at any kind of employment so as to earn money and' Be- em titled to be paid any consideration- for His said services, and that the said injuries anc? disabilities sustained by this plaintiff,' have affected his right hand and arm- and plaintiff’s left eye and the other physical structures of his body, so that the plaintiff’s disability herein complained of is to tal ¡and. permanent.”'

All the allegations in appellee’s- petition reflating to his injuries and ability to perform, labor, and claim for compensation, should-be construed together. While-the -allegations - are inartistically drawn, and perhaps not as-olear and full as should be, still-we-think that, when they are given all the- intendments- to-which they are entitled, they show. a.sufficient pleading of good cause for not filing claim for compensation within 6 months from the date of the accident, and a filing of the claim within 6 months from the resulting of disability to labor, such as appellee was able and qualified to do, resulting from the accident. The effect of the pleadings as to good cause for not filing his claim for compensation within 6 months after the accident is that, after being discharged by the doctor as being able to perform labor, although not able to do the worls he had performed before the accident, he was given other and different work, lighter or requiring less physical power, than his usual work, as provided in article 8308, § 12a, and that he accepted same, though partially incapacitated, and continued to perform same until his incapacitation or disability became such that he was discharged, his disability at that time being such' as to incapacitate him from physical labor, and that, when he was thus discharged (February 28, 1931), he did within 6 months after such discharge and disability and incapacity to labor file his claim for compensation with the Industrial Accident Board, which the records show was on May 19, 1931.

We think the effect of the pleading is that, when appellee was discharged from treatment of his injuries, his employer offered him employment reasonably suited to his then incapacity and physical condition, and that he accepted same, and continued to perform same for a period of some 5 years, though during this period his incapacity increased and his ability to labor decreased until he could no longer meet the tasks offered to him and required of him to perform, when he was discharged. And that, but for the offered work and hfe receiving ivages for its performance, he would have filed his claim within 6 months after receiving the injury. Upon this pleading and under the evidence supporting same, the court correctly submitted the issue complained against, and the finding of the jury has support in the record. Good cause and a meritorious case were shown. The law, section 12a, article 8306, R. S. 1925, provides that, if the injured employee refuses employment reasonably suited to his incapacity and physical condition, procured for him in the locality where he was injured, he shall not be entitled to compensation during such period of refusal, unless in the opinion of the board .such refusal is justifiable. Appellant acknowledged its liability to appellee and paid him for total incapacity for some weeks, stopping the payments when the doctor discharged appellee from treatment as able to work. His employer, Gulf Refining Company, recognized his partial incapacity to work by offering him lighter work, wholly different from that he performed before the injury. As the law required and as was right, ap-pellee accepted this employment until he was discharged, and then, by reason of his incapacity to labor resulting from his injuries, he filed his claim for compensation in about 2 months after being discharged.

Moreover, it has been held that, where an employee believed his injuries were not such as to materially incapacitate him from work, and under this belief accepts work such • as his condition permits him to perform, until the results of the injury have progressed to that extent as to disable him from labor, and he then presents his claim for compensation within 6 months of the occurrence of this disability, good cause is shown for the delay in filing claim under article 8307, § 4a, R. S. 1925. Compensation is not provided for pain and suffering, but for the loss of wages, and no necessity would arise for giving notice and filing claim so long as the employee lost no time from his work, and received regular wages, the while under the belief his injuries were trivial or not lasting. Texas Employers’ Ins. Ass’n v. Clark (Tex. Civ. App.) 23 S.W.(2d) 405 (408) (writ dismissed); Holloway v. Texas Indemnity Ins. Co. (Tex. Com. App.) 40 S.W.(2d) 75, 78; New Amsterdam Casualty Co. v. Scott (Tex. Civ. App.) 54 S.W.(2d) 175 (writ refused).

The seventeenth, nineteenth, and twentieth propositions complain of what is denominated a general charge in the form of special instructions to the jury relative to the argument of counsel for appellant to the jury, insisting that such charge was prejudicial and reversible error.

The record discloses that counsel for appellant, in arguing the case to the jury, said:

“I don’t want any man to say a. juror’s job is a little job. A juror is superior to the judge in the fact determination. Did. you know, His Honor on the bench yonder cannot take away from you the right to fix the facts? He cannot do it. The law says whenever you find a fact, that is conclusively binding on the court. So you are the men who have a big job, the authority of which cannot be taken from you by the court in all of its authority. And you have the privilege of fixing the facts. And, men, when you are fixing them, remember that they are fixed. Whenever you find that a certain thing is true, it is true: your finding makes it true, so far as the law is concerned. Remember that. Neither the lawyers nor the court can change your findings, and they are forever the facts, so far as the law is concerned, in this case.
“His Honor doesn’t say ‘was the injuries that he might have received any old time’ the producing cause, but ‘was the injury he received on July 17, 1925, the producing cause’ of his drawn finger and his blind eye. It seems to me that unquestionably there is an overwhelming preponderance of the evidence here that says it is not the producing cause. I believe that there are twelve men on the jury that believe it wasn’t the producing cause. I believe there is one man on the jury — and I want to say to that one man, or that two men, or that three men, if you think the preponderance of the evidence is here that says it isn’t the producing cause, let that one man stand on that one issue forever and ever. And if you know it is right, stay by what is right; it doesn’t hurt whether there are eleven or ten or nine, or eight or six against you, you are right and you are going to stand by right and not compromise with what ⅛ wrong. So, I say, gentlemen of the jury, if there be a man who knows the preponderance of the evidence is contrary to a finding that that unfortunate burn back yonder was the producing cause, stay there forever on your conviction borne out, and made, and created by the evidence that you have heard on this witness stand, and don’t compromise your own knowledge and your own understanding of the preponderance of the evidence because somebody disagrees with you, but stand by what you know is right, and stand there till doomsday.”

.After all argument to the jury was concluded and the court had read his regular charge to the jury, on his own motion, he gave to the jury the following additional charge:

“Gentlemen of the jury: In your deliberations on this case, you will remember and follow your oath, taken as jurors in this case, and find a verdict as charged in the charge by the court.
“You will eliminate from your consideration any demand of Mr. Barnes that under certain conditions you will hang this jury forever; and you are directed that you are not to enter into your deliberations on this case in an antagonistic attitude toward your fellows and their opinions upon the charge and the evidence. Hear and consider with due respect the opinions of one another, and agree upon a verdict according to the instructions given you in the court’s charge.
“Neither will you consider the argument of Mr. O’Eiel wherein he refers to the premiums paid by the refining company or the transaction between said company and other parties to this suit, all of which you know is not in evidence, and you will eliminate it from your consideration; but confine yourself to youfi oath, and bring in a verdict according to the law as given in the court’s charge, and according to the evidence submitted to you under the rulings of the court on this trial. You are to try to do this, without violence to your oath and conscience.”

Counsel for appellant took the following exceptions to this charge:

“Comes now the defendant in the above numbered and entitled cause, and excepts to the giving of the supplemental charge to the jury by the court, directed at the argument of counsel, for the following reasons, to-wit:
“I. Defendant excepts to the Court’s charge with reference to the argument of ‘Mr. Barnes,’ because it is clearly prejudicial, in that it directly and indirectly criticizes counsel, for argument entirely proper under the law; and in that it suggests and directs the jury to bring in a verdict in spite of the conclusions which might obtain in the minds of. one or more jurors.
“II. Defendant excepts to the said instructions with reference to the argument of ‘Mr. Barnes,’ because it is a peremptory request, or demand, or command, on the part of the trial Judge that the jury find a verdict, eyen in spite of the fact that one, or two, or more jurors' may not find the verdict of the majority of the jury from the evidence.
“III. Defendant further excepts because said instruction clearly suggests to the jury,, contrary to law, that if there be a division .in the jury, it will be their duty to compromise their findings, or their convictions, and,, -by virtue of and through a compromise, return a verdict, which is not only contrary to reason, but contrary to the statutory law of this State.
“IV. Defendant further excepts to the Court’s charge with reference to said argument, because the Court has instructed the jury not to be antagonistic to the opinions of the other jurors upon the evidence, thereby instructing the jury, contrary to reason and contrary to law, to be influenced by, and give weight to, opinions of other jurors in their' deliberations in this ease, instead of allowing the jury to follow the main charge and be guided solely 'by the preponderance of the evidence.
“V. Defendant further 'excepts to said charge, because there was nothing in the argument of ‘Mr. Barnes,’ which requested or urged any juror or any jurors to ‘hang the jury,’ but, on the contrary, the only argument is to the effect that men stay by their convictions born of and resulting from the evidence and the greater weight of credible testimony.
“VI. Defendant further excepts to the Court’s charge with reference to said argument, because there is nothing in said argument to indicate that defendant’s attorney asked for antagonism, or antagonistic attitudes towards each other in the jury, but merely urged the jurors to be governed by their conclusions reached from the evidence.
“Respectfully submitted,
“Barnes & Barnes
“Attorneys for defendant.
“The above and foregoing exceptions were duly and timely made and presented to the Court and opposing counsel before the Court read said supplemental charge to the jury,, and were by the Court considered, and the Court is of the opinion that same should be overruled, and they are hereby in all things overruled, and the charge is read to the jury, to which action defendant then and there excepted, and this is approved and ordered filed as a Bill of Exception in this ease. This 20th day of January, A. D. 1933.”

The bill of exceptions embodying these exceptions were allowed with the following qualifications:

“The foregoing Bill of exceptions is approved with this qualification:
“Counsel Barnes had succeeded in procuring a hung jury and a mistrial in one or two . cases, which appeared to me to be the result of his said eloquqnt appeal. He proceeded first to explain to the jury what a heroic thing it was for them to hold out against their fellows, and urged them to stay there forever; and accordingly to my observation the jury was inspired and lifted upon the wings of his eloquence; and it was resulting in hung, juries and a waste of my time and patience, and, as I thought, such speech was contrary to public policy and the interests of the county, as impeding the decision of cases and the administration of the law. I endeavored in my said instructions to stay within the duties of a jubor under his oath, and I do not believe the effects of such instructions were in any wise pernicious.
“Geo. C. O’Brien,
“Judge.
“To which qualification defendant excepts, and asks leave of the court to file a transcript. of all of Counsel Barnes’s argument as a part of the record and as part of this bill of exception, which request is by the Oourt granted to the extent that that part of the speech which refers to ‘hanging the jury’ may be made a part of this bill.
“Geo. C. O’Brien,
“Judge.”

Counsel for appellant excepted to the qualification of his bill of exceptions and requested leave to file transcript of his whole argument to the jury, which was granted “to the extent that that part of the speech which refers to ‘hanging the jury’ may be made a part 'of this bill.” (That portion of the argument is set out above.)

We do not believe that tbe charge is subject to the' criticisms leveled against it. It is made the duty of the trial judge by law to charge the jury as to the law of the case and of all its features. likewise it is his duty to see that the trial of cases is conducted properly and with a view to obtain fair trials, and that the business of the court is transacted with reasonable dispatch, and without unnecessary duplications. It is within his duty, under the law, to, on his own. motion, eliminate from the trial of the ease those things and occurrences, if any, which appear to be foreign to the proper conduct of same, or tend to obstruct the arrival at justice by the jury. The charge did not direct the jury to bring in a verdict “in spite of the conclusions which might obtain in the minds of one or more of the jurors,” nor did it “suggest” that it was the duty of the jurors “to compromise their findings, or their convictions, and, by virtue of and through a compromise, return a verdict, which is not only contrary to reason, but contrary to the statutory law of this state,” but very properly admonished the jury “to hear and consider with due respect the opinions of toe another, and agree upon a verdict, according to the instructions given,” in the court’s charge. It is the duty of a jury to arrive at a verdict if they can reasonably do so, and, where there are differences of opinion among the jurors as to the evidence and its weight, where same is Conflicting, unless the jurors, by careful consideration of the evidence and the opinions of their fellow jurors, agree or compose their differences, there never could be a verdict rendered. Neither the law nor good public policy forbids such agreement, and it is well settled that such compromise verdict is proper and lawful. Owens v. Missouri Pac. Ry. Co., 67 Tex. 679, 4 S. W. 593; Maverick v. Maury, 79 Tex. 435, 15 S. W. 686.

Neither do we think the charge relative to the elimination of counsel for appellant’s 'argument for a “hung jury” without basis in the argument or prejudicial. The whole tenor of the argument was not only a suggestion but an appeal to any juror who might believe from a preponderance 'of the evidence that the bums suffered by appellee were not the producing cause of his injuries, to never change his mind, to never yield to the interpretations and effect of the evidence by his fellow jurors, but to “stay there forever,” and to “stand ther.e till doomsday.” Of course, this could but mean to hang the jury, and must have been so understood by every member of the panel.

Furthermore, the court only can charge the jury the law relative to the case. The jury must take the law as given by the court in his charge and be governed thereby. No other person can instruct the jury as to the law. We think that the statements of counsel to the jury as to the law covering the findings of fact by a jury was'in effect a charge to the jury. Besides, the statements to the jury that a finding of fact by them was "conclusively binding on the court,” and that their finding of a fact as true “makes it true, so far as the law is concerned,” and that “neither the lawyers nor the court can change your findings, and they are forever the facts, so far as the law is concerned,” were incorrect statements of the law. Certainly the rule is well settled, in fact has always been the law, that the findings of a fact by a jury in response to issues submitted may not be disturbed by the courts, when the finding is sufficiently supported by credible testimony, but, where the findings are made without evidence to support them, or where the findings are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong, then the court not only has the power, but it is his imperative duty, under the law, to set aside the findings. They are not conclusively binding upon the courts, nor do they stand as found forever so far as the law is concerned. It would be a monstrous miscarriage of justice, and in the face of well-established rules, to hold that a fact found by a jury stands forever as found, and that courts are conclusively bound by the finding, regardless of whether it has support in 'the evidence, or of being so against the great weight and preponderance of the evidence as to be manifestly wrong.

The fact that the court in his supplemental charge to the jury relative to the argument of counsel for appellant also instructed the jury not to consider the argument of counsel for appellee on certain matters because there was no evidence upon which to base the argument shows that the court was impartially endeavoring to guide the trial of the ease within the channels of law which should govern same. Of course, the qualification of the court to the bill of exceptions relating to the argument set out supra was not known to the jury, and therefore could not in any way be prejudicial.

Appellant’s twenty-ninth and thirtieth propositions complain that the charge given by the court in explanation of special Issue No. 18 was a general charge, and therefore error, the ease being submitted on special issues; also that said charge was error, in that it indicated to the jury the result of their finding in answer to said issue. These exceptions were duly made to the charge.

Special issue No. 18 reads:

“From a preponderance of the evidence, find whether or not, if plaintiff, Sidney Williams, made claim for compensation for the injury, if any, sustained by him on or about July 17, 1925, within six months following the beginning of incapacity therefrom.”
“Answer yes or no as y<ou may find the facts to be.”
“In this connection you are instructed that if an employee sustains an injury in the course of his employment as a result of which incapacity to work and labor as defined herein, occurs, and thereafter and following such injury the employer furnishes such employee employment reasonably suited to his incapacity and physical condition, and thereafter such employee labors and works in such employment, without recovery from such incapacity, until such time as he may be discharged by his said employer or said employment terminated, is unable to secure other employment at which to labor because of such injury and incapacity, if any, so sustained, that the period of incapacity in law’ is to be reckoned from the date of such employee’s discharge or the termination of such employment, if any.”

The charge is not subject to these objections. It does'not indicate to the jury what the effect of ’their answer to the issue would be, nor is it a general charge. It was a proper and necessary explanation of the term “within six months following the beginning of incapacity therefrom,” used in the wording of the issue. Incapacity results from the injury. There is a clear distinction between “accident” and “injury.” The “injury” may develop long after an accident, but still result therefrom within the requirements of the Compensation Law. They are not necessarily concurrent. Texas Employers’ Ins. Ass’n v. Fricker (Tex. Civ. App.) 16 S.W.(2d) 390 (writ refused).; Texas Employers’ Ins. Ass’n v. Wonderley (Tex. Civ. App.) 16 S.W.(2d) 386 (writ dismissed); Texas Employers’ Ins. Ass’n v. Herron (Tex. Civ. App.) 29 S.W.(2d) 524 (writ dismissed); Jarrett v. Travelers’ Ins. Co. (Tex. Civ. App.) 66 S.W.(2d) 415, 417. Under these decisions, the explanatory charge, of the meaning of the language, “within six months following the beginning of incapacity therefrom,” was necessary for a proper understanding by the jury of the fact sought toi be found by the issue, and in accordance with the law governing the finding of such fact.

The thirty-first proposition urges that the trial court was without jurisdiction to hear and determine the case, because there was no evidence to show that appellee received his injuries in Jefferson county, Tex., and so the judgment is without support.

■ This proposition is overruled. We think the evidence sufficiently shows that the accident and resulting injuries were received by ap-pellee in Jefferson county, Tex. Appellee was employed by the Gulf Refining Company at Port Arthur, Tex. He received his injuries at the refining plant in Port Arthur. The case was tried in the Fifty-Eighth district court of Jefferson county, Tex. Dr. Orrill was the physician who looked after the company’s injured employees, and who treated appellee. He testified that he had lived and practiced medicine and surgery in Port Arthur for 13 years, that he was duly licensed to practice, and that his license was properly “registered in this County.” This testimony could have but one meaning, and that was his license to practice was registered in the county where the case was then being tried — Jefferson county. Dr. Fullbright testified that he had lived a.nd practiced medicine in Port Arthur since January, 1922; that he was duly licensed to practice medicine and surgery in the state of Texas and in Jefferson county. The law, article 4498, R. S. 1925 (as amended by Acts 1931, c. 49, § 2 [Vernon’s Ann. Oiv. St. art. 4498]), provides that no person shall prac-. tice medicine within this state who has not registered his license authorizing him to so practice in the district clerk’s office tof the county in -which he resides. As both Dr. Or-rill and Dr. Fullbright testified that they lived in Port Arthur, Tex., and both had their license registered in the county where he resided, it clearly appears by their testimony that Port Arthur is in Jefferson county. Furthermore, this court judicially knows that the city of Port Arthur is in Jefferson county, Tex. Courts take judicial notice of public laws 'of the state and of all facts therein recited. By Special Acts of the 32d Legislature (1911), chapter 52, the city of Port Arthur was granted a spefcial charter, in which the territory incorporated was described as in Jefferson county, and the ehartef contained the provision that “this Act shall be deemed a public Act, and judicial notice shall be taken thereof in all courts.” Article 6, § 12. Again, by the Acts of the 41st Legislature (1929), chapter 292, Port Arthur was recognized as being “situated in Commissioners’ Precinct Number 2 of Jefferson County” (section 1)-; said act donating the state taxes to the city of Port Arthur for a period of 20 years for the purpose of aiding and building a seawall for the protection of said city against sea floods. Anderson v. Polk, 117 Tex. 73, 297 S. W. 219; 17 Tex. Jur. Evidence, § 9, p. 191; Id. § 13, p. 179.

The assignment that the court erred in rendering judgment for lump sum compensation is sustained. It is only where the injury results in death or total permanent incapacity that lump sum compensation judgments may be had. Article 8306, § 15, R. S. 1925. The judgment herein being for the loss of certain members, an eye and a hand, the judgment for lump sum compensation was not warranted. But this error does not require that the judgment be reversed and remanded, but may be corrected by reforming the judgment by tomitting that provision of same, and requiring the judgment to be paid in weekly installments of $11.67 as found by the judgment, beginning and running from the 28th day of February, 1931, all past-due installments to bear interest at the rate of 6 per cent, from the due date until paid.

All assignments not herein discussed have been considered, and are overruled. The judgment is reformed as above indicated, and, as reformed, is affirmed.


author: LEVY, Justice

text:
    BURRESS v. BYRD et al.
    No. 4443.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 9, 1934.
    Rehearing Denied March 8, 1934.

      Carrigan, King & Surles, of Longview, for appellant.
    O. R. Crum, M. ■ S. Church, and Prentice . Wilson, all of Dallas, for appellees.
   LEVY, Justice

(after stating the ease as above).

The point presented for decision on the appeal is that there was error “in rendering judgment non obstante veredicto, and in failing to render judgment for the plaintiff in accordance with the findings of the jury.” It is believed in the circumstances of the case the disregarding of the verdict and entering a judgment against .the plaintiff may not be deemed required, either because the facts found by the jury were immaterial, or because the plaintiffs as a matter of pure law was not entitled to a judgment. There was a finding by the jury that: (1) The true agreement concluded by the parties was that W. M. Burress was to have and pay for substantially an undivided 20-acre mineral interest .in the estate purchased from the Bacles; and (2) that it was intended to have the conveyance to W. M. Burress grant an interest accurately described in the actual acreage acquired by W. H. Éyrd from tbe Bacles; and (3) that field notes as set out in the deed to W. M. Burress calling for 310 acres instead of 151 acres was inserted in the instrument through mistake. There is not the absence of any evidence to support the findings of the jury. It is quite affirmatively shown by evidence in behalf of appellant that it was agreed by the parties that W. M. Burress was to “cut in” or have and pay for an interest in the 'grant purchased from the Bacles to the value of $400 at $20 per acre, which amounted to an undivided 19.37-acre interest, or, as treated by the parties, substantially a 20-acre interest. And there is affirmative evidence in behalf of the appellant going to show that it was agreed by the parties that the grant to W. M. Burress of an interest should be a particular portion of the actual acreage acquired by D. H. Byrd from. the Bacles. It is conclusively shown that the actual acreage owned and sold by the Bacles to D. H. Byrd, as respects the second tract in evidence, was 151 acres, and not 230 acres.

The acreage of 19.37 acres or substantially a 20-acre interest was, as appears, by mere computation, taken and deemed by the parties to constitute substantially the fractional part of ½6 of 310 acres, or ⅛ of about 151 acres, plus. It may therefore be taken as established what the parties agreed to and understood the agreement to be, and that they both acted upon it, and undertook to make such conveyance as would make the agreement effective. It is evident, in view of the proof, that the- deed made to appellant, prepared to carry out the purpose the parties had in mind and which was supposed they were making effective, was not effective to carry out the oral agreement. The description was not correct as to fractional part mentioned or quantity of acreage named in the second tract. There is manifest error therein, as relates to the second tract, of description, embracing an acreage of 230 acres, when less than that quantity was contracted for and purchased by D'. H. Byrd. The particular description, although correctly described in other respects, is incomplete and erroneous in not excepting the lands previously sold. In order to adjust the misde-scription to the actual conditions of fact is the real purpose of this suit. If the deed prepared is not effective to carry out the purpose the parties had in mind and which they supposed they were making effective, it should be corrected. The insertion of the exception in the conveyance would not defeat the real agreement of the .parties, or make a new agreement of the parties, and could be effected without injustice to appellees. The general doctrine is firmly settled that a court of equity will grant affirmative relief as may be required by the circumstances from the consequences of any mistake of fact which is a material element of the transaction.

A “mistake,” as defined, is “some unintentional act or omission or error arising from ignorance, surprise, imposition or misplaced confidence.” 1 Story Eq. Jur. (14 Ed.) § 155, p. 146; Bishop Eq. § 185. See 2 Pomeroy Eq. OTur. (14 E’d.) 839, p. 1706.

The copying into an instrument of a merely incomplete description of the property as to quantity of land contracted for and purchased may, as between the parties, be treated as a mistake; the mistake being innocent and shared by both parties. The description written in the deed was taken from another deed and without observing or in oversight of the other portion containing the exception in evidence of other lands previously sold. It is not at all made to appear that the real mistake was intended or observed at the very time of writing the description in the deed, or was intentionally done or suffered by one or both of the parties to the transaction. The appellees were not prevented any inspection of the deed to discover the error therein of omission of the exception. The real mistake was not discovered by any one of the parties before execution and delivery of the deed, and the evidence is direct that the appellant appealed to appellee for correction as soon as he in fact learned of the erroneous and incomplete description.

The judgment is reversed, and, in keeping with the verdict of the jury, judgment is here rendered in favor of the appellant as prayed for. Costs of appeal and the trial court are taxed against appellees.


author: HIGGINS, Justice.

text:
    EL PASO ELECTRIC CO. v. CANNON.
    No. 2963.
    Court of Civil Appeals of Texas. El Paso.
    March 8, 1934.
    Rehearing Denied March 29, 1934.
    Baker, Botts, Andrews & Wharton, of Houston, and Brown & Brooke, of El Paso, for appellant.
    John T. Hill and H. A. Van Tassel, both of El Paso, for appellee.
   HIGGINS, Justice.

The appellee, Cannon, while a passenger upon a street car operated by appellant, was cut and stabbed by a fellow passenger. Cannon brought this suit against appellant to recover damages resulting from his injuries.

Appellee, accompanied by Mr. and Mrs. Peables, boarded the car in Juarez, Mexico. The car was well filled with passengers returning to El Paso. It crossed the international bridge and proceeded a few blocks when a fight occurred between Cannon and a stranger upon the car. Cannon struck the stranger and knocked him unconscious. According to the testimony of Cannon and other witnesses, the stranger was the aggressor in this fight. Other testimony was to the effect that Cannon provoked the difficulty. The stranger was soon restored to consciousness and resumed his seat in the car near the front. Cannon also resumed his seat. The car then proceeded to the intersection of San Antonio and Oregon streets in El Paso and stopped to discharge passengers. As the car slowed down a number of passengers,' including Cannon, Mr. and Mrs. Peables, and the stranger, arose and proceeded towards the front exit. The stranger and Cannon reached the front end of the car near the motorman, the stranger being in front. There a second fight took place between them in which Cannon was cut and stabbed.

The case was submitted upon the general issue resulting in verdict and judgment in Cannon’s favor for $3,333.

Briefly stated, the court’s charge upon the issues was to this effect:

To find for plaintiff if the assault was uninvited by him and defendant’s employees in charge of the car were negligent in failing to protect plaintiff and such negligence proximately caused his injuries.

To find for defendant unless it was found:

1. The acts of the person who cut plaintiff were uninvited.

2. That defendant’s employees could have reasonably foreseen and anticipated injury to plaintiff by the person who cut Him, and by the exercise of ordinary care could have prevented it. And

3. To find for defendant if plaintiff was the aggressor in the conflict in which he was cut.

Special charges requested by defendant were given to this effect:

No. 1. To find for defendant if “the plaintiff by reason of conduct, if any, upon his part such as was reasonably calculated so to do, provoked a difficulty with another passenger, proximately resulting in the injuries complained of by him.”

No. 3. To find for defendant if “the plaintiff, by his acts and conduct, if any, or by his language, if any, provoked or brought about a fight with another party and that in said - fight, if any, the plaintiff was cut or injured as alleged by him.”

No. 4. To find for defendant if “the plaintiff, .Tack Cannon, in the presence and hearing of the party with whom he had the difficulty, cursed or abused such party, or used any violently abusive language to or concerning such person, under circumstances reasonably calculated to provoke a breach of the peace, and that such words, or acts, or conduct, if any, upon the part of the plaintiff, provoked and brought about the difficulty in which he received the injuries complained of.”

By its special charge No. 2, defendant requested an instruction to find in its favor if the plaintiff and another party engaged in a fight or mutual combat together upon the street car and that in said fight or mutual combat, the plaintiff received the injuries complained of by him.”

Appellant complains of the refusal of this last-mentioned charge in that connection, asserting that if the charge was not correctly drawn it whs nevertheless sufficient to indicate the defensive issue of mutual combat and impose upon the court the duty of preparing and submitting a correct charge upon the same.

In the main charge plaintiff’s right to recover was conditioned upon a finding that the assault was uninvited by him. Later therein the jury was instructed to find for defendant if plaintiff was the aggressor in the conflict. Then in the special charges the defensive issues of plaintiff provoking the difficulty were fully submitted.

“The issue of mutual combat as a limitation upon the right of self-defense does not arise alone from the fact that the parties to the affray are mutually engaged in it. The issue arises out of an antecedent agreement to fight. The agreement must exist. Of course, it may be proved by direct testimony or inferred from circumstances.” Carson v. State, 89 Tex. Cr. App. 342, 230 S. W. 997, 998.

The evidence is lacking in anything to indicate any prearrangement or agreement to engage in combat. The evidence does raise the issue of plaintiff being the aggressor and provoking the difficulty. Such being the state of the evidence, “then in the nature of things the issue of mutual combat is not in the ease.” “Because two parties mutually fight, or do fight, and in that sense there is a mutuality of combat, does not suggest the issue of mutual combat which takes away the right of self-defense.” Reese v. State, 49 Tex. Cr. App. 242, 91 S. W. 583, 584.

We regard the evidence as insufficient to raise the issue of mutual combat as defensive matter, for which reason a charge upon . such issue was not necessary. ’

Mrs. Peables, witness for plaintiff, upon her redirect examination, was permitted to testify that she and Mr. Peables and plaintiff met in the office of Mr. Hill, counsel for plaintiffs, and talked about the case before the suit was filed, and she at that time told them there was a man got on the front end of the car at the bridge and stood in behind the motorman. This testimony was admitted over objection that it was irrelevant, etc., and plaintiff could not bolster up the testimony of his witness in such manner.

Mrs. Peables was a witness for plaintiff in rebuttal. Defendant had previously placed upon the stand a Mr. Woolsey, a United States officer in the Public Health Service. Woolsey, in behalf of defendant, had testified he boarded the car at the imijiigration office and stood in the front end near the motorman ; when the second fight began, he did not know who started it because he had his back turned. When he discovered the fight, he felt it was his duty to stop it and grabbed Cannon; somebody pushed the other man, and by that time the door was open and the other man stepped off the car and walked away.

Upon her direct examination Mrs. Peables testified a man got on the front of the car at the bridge and stood behind the motorman; that this man did not grab Cannon. She further testified the motorman held Cannon during the fight in which the cutting occurred, 'it is plain Mrs. Peables was referring to Woolsey as the man who got on the car at the bridge and stood by the motorman and whom she testified did not hold Cannon during the fight.

Mrs. Peables was cross-examined, in part, as follows:

“Q. You didn’t testify in this case about this Public Health Officer, as having gotten on at the bridge, until after the Public Health Officer testified? A. I don’t understand your question.
“Q. Isn’t it true, you didn’t' know anything about the Public Health Officer until after he had testified in this case? A. I didn’t even know he testified and I didn’t know he .was a Public Health Officer.
“Q. Isn't it true, you didn’t know anything about the Public Health Officer having been on that car until after he testified? A. I certainly did know he had been on and I didn’t know he was a Public Health Officer.
“Q. Haven’t you and Mr. Peables and Mr. Cannon been trying to find out about that prior to the case? A. I had not, no, sir.”

Then upon her redirect examination Mrs. Peables gave the testimony which it is asserted was improperly admitted.

The matter presents no error, for her cross-examination as quoted was an effort by defendant to leave the impression that her testimony upon direct examination concerning a man getting on the'car in front at the bridge, and who stood behind the motorman, was a fabrication and afterthought. Under such circumstances it was permissible to show that before tire suit was filed she made the same statement to the plaintiff’s counsel. Lewy v. Fischl, 65 Tex. 311; Gulf, C. & S. F. Ry. v. Garren, 96 Tex. 605, 74 S. W. 897, 97 Am. St. Rep. 939; Ætna Ins. Co. v. Eastman, 95 Tex. 34, 64 S. W. 863; G., C. & S. F. R. v. Matthews, 100 Tex. 63, 93 S. W. 1068; H. & T. C. Ry. v. Fox, 106 Tex. 319, 166 S. W. 693; Davis v. Davis, 44 Tex. Civ. App. 238, 98 S. W. 198; Texas & N. O. R. Co. v. Petersilka (Tex. Civ. App.) 176 S. W. 70.

But if it be conceded the evidence should have been excluded, the error in admitting the same was harmless, because it confirmed the testimony of defendant’s witness Wool-sey, that he boarded the car at the Immigration Office and assumed a position by the motorman at the front end of the ear.

Another ruling upon evidence complained of by appellant relates to testimony given' by plaintiff testifying in his own behalf. It is shown by this excerpt from the record:

“Q. Now, just tell the jury — -you allege-you are permanently disabled, tell the jury-why you say that, why you claim you are permanently disabled because of these-wounds.
“Mr. Brown: I think that is a matter of' medical and expert testimony. We object to-it on that ground.
“The Court: Overrule the objection.
“Mr. Brown: Note an exception.-
“Q. Go ahead and answer the question, why-do you think you are permanently disabled? A. Well, when I reach and pick up anything- or do any straining of any kind, it hurts.
“Q. Very much? A. Quite a bit, and probably sometime in the night I wake up and' my whole side will be hurting.
“Mr. Brown: Our objection goes to all of that on the ground that it is incompetent and immaterial and a matter of expert testimony.
“The Court: Overrule the objection.
“Mr. Brown: Note an exception.
“Q. What other experience have you had you didn’t have before? A. I can’t eat like-I could before; when I eat anything, I bloat up and have -to take medicine all the time for a purgative.
“Mr. Brown: We particularly object and move that that be stricken out.
“The Court: Overrule the objection.
“Mr. Brown: We except.”

Plaintiff further testified he was not that,, way before.

One of plaintiff’s injuries consisted of a stab which penetrated his liver two to two and one-half inches. It was necessary to operate upon him and sew up the cut in the liver. The original abdominal wound was in a transverse direction. This was enlarged a short distance and then a longitudinal incision was made to expose the abdominal organs. Some infection later developed in the incision and it was necessary to “freshen” its edges and sew it up again.

The testimony was simply a statement by plaintiff of his physical symptoms and conditions after he had sustained his injuries. Such symptoms and conditions were facts which he could properly state as such. The objection made to the testimony is not tenable. 19 Tex. Jur. p. 358, § 232; Standard, etc., v. Williams (Tex. Civ. App.) 4 S.W.(2d) 1023; Id. (Tex. Com. App.) 14 S.W.(2d) 1015; Texas & P. Ry. Co. v. Watts, 36 Tex. Civ. App. 29, 81 S. W. 326; Texas, etc., v. Davies (Tex. Civ. App.) 6 S.W.(2d) 792, 795.

(The charge upon the measure of damages reads: “In estimating such damages, if any, if you find that the plaintiff has suffered mental and physical pain as a result of his injuries, you may take that into consideration and allow such sum as you find, which, if paid in cash now, will reasonably compensate him for such mental and physical pain as you find he 'has suffered directly resulting from the occurrence complained of; if you find that the plaintiff will suffer mental and physical pain in the future, proximately resulting from the occurrence complained of, you may take that into consideration and allow such sum as you find will reasonably compensate him for such mental and physical pain as you find that he will suffer in the future proximately resulting from' the cutting complained of. If you find that the plaintiff has been prevented from laboring and earning money on account of the cutting complained of, you may take that into consideration and allow such sum as you find will reasonably compensate him for the time • heretofore lost, if any, proximately resulting from the cutting complained of; and if you find that he will be prevented from laboring and earning money in the future, as a result of the cutting complained of, you may also take that into consideration and allow such sum as you find will reasonably compensate him for such diminished capacity to labor and earn money in the future, if any, proximately resulting from the cutting complained of.”

To this charge it is objected:

1. It permits a double recovery.

2. Is misleading and confusing.

3. There is no evidence to warrant submission of impairment to labor and earn money in the future.

The charge is not subject to the two objections first stated. This is apparent.

As to the third criticism, it is true the only medical expert who testified said plaintiff had entirely recovered, was in as good physical condition as he was before his injury, and his future earning capacity unimpaired ; but it is a matter of common knowledge the medical experts are not always right in their opinions and prognoses.

In our opinion the testimony of plaintiff is sufficient to raise an issue as> to impaired capacity to labor and earn money in the future.

The sufficiency of the evidence to support the verdict and judgment is attacked upon the ground that plaintiff’s injuries and damages were too remote. As we understand this theory, it is that defendant’s employees could not reasonably have anticipated and foreseen the assault made upon plaintiff and the injuries which he suffered at the hands of his fellow passenger.

It was the duty of defendant’s employees operating the car to protect plaintiff from the a-ssault provided they knew of it or had reasonable grounds to anticipate it. Houston & T. C. Ry. Co. v. Phillio, 96 Tex. 18, 69 S. W. 994, 59 L. R. A. 392, 97 Am. St. Rep. 868.

There is an abundance of testimony the first fight was precipitated by the fellow passenger, making a wholly unprovoked assault upon plaintiff. This being true, such employees might reasonably have anticipated á repetition of such misconduct, and they should have used ordinary care to protect plaintiff against it.

Furthermore, when the second fight occurred the motorman knew of it and did nothing to protect plaintiff. On the contrary, according to the testimony of plaintiff and his witnesses, the motorman held plaintiff while the stranger was cutting and stabbing him. In this state of the evidence the point made by defendant cannot be sustained.

The assignment asserting the verdict is excessive, is overruled. In addition to the abdominal wound above mentioned, it was shown that plaintiff was cut in the face, the gash extending from the mouth towards the ear; there was a gash in the throat under the chin. As a result of the abdominal wound, and in the liver, much blood was lost. A blood transfusion was necessary. Plaintiff was confined in a hospital for 52 days. Operations were necessitated by the abdominal wound as heretofore stated. In view of the injuries sustained we do not regard the verdict of $3,333 as excessive.

Under other assignments it is complained:

1. The verdict was a quotient one.

2. That the juror Grambley, who had lost a leg years before, related his experience of trouble with his leg after its loss.

3. That the juror Grambley was biased and prejudiced.

Three jurors testified. It appears there was a wide difference of opinion among the jurors as to the amount of damages which should be awarded. In an effort to reach an agreement the jurors at least twice, and perhaps three times, wrote the amounts they severally thought should be awarded and totaled same. The total was divided by twelve. The last time such a calculation was made, the result was $3,333, and this was returned as the verdict. The evidence, considered as a whole, warranted the trial court in finding there was no agreement in advance to accept the quotient as the amount to be awarded; that the calculation was used as a basis for compromise; and the quotient, after it. was ascertained, was then agreed to as the verdict. Upon this state of facts the trial court did not abuse the discretion vested in it holding this alleged ground of misconduct was not shown. Andrews v. York (Tex. Civ. App.) 192 S. W. 338; El Paso E. Ry. Co. v. Collins (Tex. Civ. App.) 10 S.W.(2d) 397, and cases there cited. This last mentioned was later' reversed by the Commission of Appeals on other grounds. See 23 S.W.(2d) 295, and 25 S.W.(2d) 807.

As to alleged improper statements by the jupor Grambley, we quote from appellant’s brief:

The juror Bush testified:

“Mr.- Grambley, one of the jurors, claimed that sometimes a dead limb will bother you afterwards, in speaking of his lost leg. He said he believed that would affect Mi-. Cannon and he was holding out for a higher sum. He believed the injuries Mr. Cannon had received would be felt by him afterwards, just as in the instance of the lost leg, and he made a statement to the jury to that effect. 1-Ie said his leg had bothered him and gave that as his experience.
“He said he had lost his leg in some kind of railroad accident and he felt Mr. Cannon was in the same fix with reference to his accident. He might be bothered like Mr. Grambley’s loss of a leg bothered him. He made that statement when he kept holding out for a higher sum and gave that as his reason. He was the only one that high.”

Cordova testified: “A juror named Gram-bley was crippled. During the discussion as to how long the’plaintiff would be injured, whether permanent or not, this juror stated he had been injured by the railroad and he was still suffering from it and that had been twenty years ago. They were discussing as to whether the plaintiff would be injured for some time to come and was still suffering, and it was in this connection that this juror mentioned the matter. That particular juror was voting for a large amount, giving that as a reason why a large amount should be given the plaintiff.”

The third juror, Berry, testified: “Mr. Grambley, one of the jurors, made a statement to the jury giving his experience in connection with an injury to his limb, giving that as a reason why there should be a large verdict, stating he had lost his leg and he had suffered from it since and at times felt as if the leg he had lost were still there and paining him, and made a statement or argument to the jury to the effect that from that Mr. Cannon would probably have a like 'experience and it would last him through his life and the effect would be" felt by him in some sort of way He made the statement to the jury that nobody could tell, no person could tell the extent of another man’s injuries and often a man had more' lasting injuries than the doctor testified to. Then he told his own experience, relating his experience and showed he had injuries more lasting than the doctor had indicated he would have; that his leg still hurt him. He had lost it in a railroad accident.”

Each of the jurors further stated they were not in any wise influenced by Grambley’s ■statements.

It is a matter of common knowledge that persons who-have had limbs amputated often seem, for years, to have pain in the lost limb. Grambley’s doubts and statements as to the conclusive effect of the testimony of the medical expert was well sup-, ported by common knowledge. The statements by Grambley .of such matters of knowledge we do not regard as reversible.

Nor do we consider him to have been shown to be disqualified by bias and prejudice. He favored a much heavier award of damages than the amount finally agreed upon. It cannot properly be said that a juror is shown to have been disqualified as a matter of law in a personal injury case simply because he had suffered an amputation from which he later suffered; because he doubted the correctness of the prognosis of a medical expert witness and favored a heavy award of damages in the particular case.

In our opinion the errors assigned show nothing reversible, and the judgment should he affirmed.

It is so ordered.