#### HARWELL v. REED.

No. 976.

Court of Civil Appeals of Texas. Eastland.

May 6, 1932.

Rehearing Denied June 3, 1932.

Cox & Hayden, of Abilene, and Touchstone, Wight, Gormley & Price, of Dallas, for appellant.

Scarborough, Ely & King, of Abilene, for appellee.

LESLIE, J.

The plaintiff, Howard Reed, instituted thi» suit against TJ. C. Harwell for the recovery of damages alleged to have been sustained by him in an automobile accident in which a car-driven by Reed collided with a car driven by Harwell. The plaintiff sought to recover damages in the sum of $750 for the destruction of his automobile; $3,000 damages mental and physical pain; $250 for loss of time; and $17.50 for medicine and hospital fees.. The defendant, Harwell, answered by genpraL denial, plea of contributory negligence, and presented a' cross-action seeking $500 damages to his own automobile. The case was. *416tried before tbe court and jury, and, upon tbe verdict returned, tbe court entered a judgment in favor of tbe plaintiff for $500 for damages to bis car and for $500 for personal injuries alleged.. Tbe verdict aggregated $1,017.50, but tbe $17.50 was eliminated on motion for a new trial. Tbe verdict of tbe jury found that tbe defendant’s car was damaged in some $500, but further found that be was negligent, as alleged, and that sucb negligence was tbe proximate cause of tbe plaintiff’s injuries.

Motion for new trial was filed in due time and overruled, and this appeal is prosecuted by tbe defendant, Harwell.

Tbe only questions involved in this appeal relate to misconduct of tbe jury as presented in tbe motion for a new trial. Tbe appeal is predicated upon three propositions: The first contention is that tbe members of the jury agreed in advance to answer tbe special issues so as to award tbe plaintiff a judgment for $517.50, and to answer tbe issues accordingly. Tbe second proposition is that, in any event, there was such extended discussion by tbe jury of tbe legal effect of their answers, together with agreement and understanding, to render said verdict in favor of tbe plaintiff as to amount to misconduct. Third, that tbe jury, in finding $517.-50 damages for personal injuries, included therein compensation for loss of time, when sucb item was eliminated by tbe court in bis' charge. In each respect it is claimed tbe jury was guilty of misconduct.

From a consideration of tbe record, it is obvious that each point relates to an issue of fact. Various jurors were called to testify upon tbe issues presented by tbe motion for a new trial. At tbe conclusion of sucb testimony, tbe court resolved tbe issues in favor of tbe plaintiff and overruled tbe motion.

We bave carefully read tbe statement of facts, and are of tbe opinion that the testimony as a whole not only supports tbe ruling of tbe trial court, but preponderates in favor of bis conclusions that no misconduct was shown in either respect claimed. Tbe most favorable view of the testimony, from tbe standpoint of tbe appellant, is that there was a conflict in tbe evidence. It was tbe province of tbe trial judge to determine sucb issues, and this court would be without authority to disturb the findings. Tbe propositions are overruled upon tbe authority of tbe following cases: Bradshaw v. Abrams (Tex. Com. App.) 24 S.W.(2d) 372; Texas Employers’ Ins. Ass’n v. Chocolate Shop,, Inc. (Tex. Com. App.) 44 S.W.(2d) 989; Estep v. Bratton (Tex. Civ. App.) 24 S.W.(2d) 465; Stebling v. Johnson (Tex. Civ. App.) 32 S.W. (2d) 696, par. 9.

Tbe evidence indicates that tbe jury answered tbe questions as they came to them, and that without regard to any effect tbe answers might bave on tbe judgment. Further, it is pretty clear that some of tbe jurors did not know tbe legal effect of their answers. That is immaterial, for tbe spirit of the special issue law makes the legal effect of tbe jury’s answers no concern of theirs. Gulf, C. & S. F. Ry. Co. v. Harvey (Tex. Com. App.) 276 S. W. 895; Conlisk v. Bender (Tex. Civ. App.) 245 S. W. 941.

For tbe reasons assigned, tbe judgment of tbe trial court is affirmed.