On Motion for Rehearing. It is true, as contended by appellee, that our holding with reference to the time in which a bystanders' bill of exceptions may be filed is not in accord with expressions contained in some recent opinions, as well as those rendered under different statutes. In view of this fact, we deem it proper to further discuss the question, in order that the reasons upon which we base our decision may be fully understood. We will also touch upon some of the other contentions pressed in the motion for rehearing.
Sections 101, 102, and 103 of the Practice Act of 1846 (Gammel's Laws, vol. 2, p. 1697), in prescribing the method of obtaining a bill of exceptions, failed to include any provision with respect to the time in which the bill would have to be presented and filed. In the case of Houston v. Jones, 4 Tex. 170, it was held that a bystanders' bill of exceptions should have been given at the time of the occurrence of the facts certified to, and used a general statement that all exceptions to the opinion of the judge should be reduced to writing at the time the opinion is given on the ruling made. In Jones v. Thurmond's Heirs,5 Tex. 318, it was held that a bill of exceptions ought to be tendered at the trial, or at as early a period as practicable, and during the term. This decision indicates that the court found no rule or statute to guide it, as it discussed the rules applied by courts of other states. In the case of Heidenheimer v. Thomas, 63 Tex. 287, the court held that it was requisite for a bystanders' bill to show that the persons who signed it were present when the facts in dispute occurred, and that the certificate was given at the time the occurrence to which it relates transpired, citing Houston v. Jones, supra. This decision was rendered after the adoption of the Revised Statutes of *Page 293 1879, in which the language relating to bills of exception had been changed from that of the act of 1846, and by article 1363 it had been provided that it should be the duty of the party taking any bill of exceptions to reduce the same to writing, and present it to the judge for his allowance and signature during the term, and within 10 days after the conclusion of the trial. We have been unable to ascertain whether the change made by virtue of article 1363 had been made by the Legislature previous to the adoption of the statutes of 1879, or whether it was written into the statutes by the codifiers. Their report contains no reference thereto. Such provision was carried forward in the revision of 1895, but since then various acts have been passed, increasing the time within which bills of exception must be filed. See Gammel's Laws vol. 12, p. 32; vol. 13, p. 446; vol. 14, p. 376; vol. 15, p. 266. These acts all contain captions describing them as acts to prescribe the time, or amending acts to prescribe the time, within which bills of exception may be filed. In a case decided February 4, 1905, the Dallas Court of Civil Appeals held that a by-standers' bill must be taken and filed at the time of the occurrence of the acts complained of. De .Hougne v. Tel. Co., 84 S.W. 1066. That court repeated the holding in Shook v. Shook,145 S.W. 699. This court held the same in Kenedy v. Tel. Co.,167 S.W. 1094. The Amarillo court, in Jolley v. Brown, 191 S.W. 177, used language indicating that it held the same views with respect to the time for taking such a bill of exceptions. In view of the opinions thus expressed, it may seem presumption indeed for this court to announce a different view, and ordinarily we would be very reluctant to do so. We are led to do so by our conviction that the Legislature, in prescribing in general terms the time for filing bills of exception, did not intend to lay a trap for the unwary, but intended to obviate, not only the necessity for delaying the trial to draw up bills of exception, but also other trials in which the court might wish to engage during the term. If it be true that a bystanders' bill is not worth the paper it is written on unless taken and approved at the time of the occurrence of the facts complained of, the attorney who avails himself of the statutory time to draw up his bill must take the responsibility of jeopardizing the interests of his client. He cannot know that the court will disagree with him until he presents his bill, and unless he presents it at once he has no remedy upon the occurrence of the disagreement. While we do not regard the Supreme Court decisions above referred to as authoritative under the present statutes, we will also call attention to the fact that in not a single case hereinbefore named was it necessary to decide that a bystanders' bill must be taken, approved, and filed at the time the acts complained of occurred. In each instance one or more other objections were shown, sufficient in themselves to destroy the bill.
The holding that jurors are bystanders within the meaning of the statute relating to bystanders' bills of exception at first glance may seem to be at variance with the definition of the word "bystander," and it may also be argued with much force that as a bill of exceptions may be taken during the course of the trial, if jurors be drawn into the controversy, it may affect their verdict. We do not think, however, that the fact that the jurors might not be availed of at the particular time because of danger of transgressing other rules of practice would place them in the same class with the lawyers trying the case and the parties. This court had occasion in the case of Glover v. Pfeuffer, 163 S.W. 984, to pass upon the question whether the attorneys could certify a bystanders' bill, and we quoted with approval from the Missouri case of State v. Jones, 102 Mo. 305, 14 S.W. 946, 15 S.W. 556. We find that the Supreme Court of Missouri (Division 2) in the case of Buck v. St. Louis Union Trust Co., 267 Mo. 644, 185 S.W. 208, held that a bystanders' bill could be attested by jurors who had assisted in the trial of the case, and the reasons for so holding appeal to us as sufficient to warrant us in adhering to our conclusion that the objection urged in this case to the effect that jurors cannot be bystanders within the meaning of the law should be held to be without merit.
Statutes relating to appeals are always liberally construed; and this court has heretofore followed that rule of construction with reference to statutes relating to filing bills of exception. Railway v. Vick, 210 S.W. 247; General Bonding Casualty Ins. Co. v. McCurdy,183 S.W. 796.
It is contended that —
"Where no objection has been made, no bill of exceptions is authorized by our statutes, and it would therefore be impossible to take out a written bill of exceptions where the party failed to except or object to the action of the court."
This contention is plausibly argued, but is not in accord with the opinions of our courts, which have treated the bill of exceptions as the means for making a part of the record on appeal all matters not shown by the record proper or the statement of facts. In the case of Willis Bro. v. McNeill, 57 Tex. 465, the court held that argument of counsel constituted error, and in order to arrive at such conclusion considered a bill of exceptions, copied in the statement of the case, which disclosed that no objection was made at the time the argument occurred. The bill of exceptions did not disclose any request to *Page 294 the court instruct jury concerning the argument, and hence no exception to any ruling of the court. The opinion appears to have been based largely upon the fact that under the rules the duty rests upon the judge to confine counsel to proper argument. This holding has been followed in other cases. Railway v. Rehm, 36 Tex. Civ. App. 553, 82 S.W. 526, and cases therein cited. Surely the duty resting upon the court not to comment upon the weight of the evidence by word or act is fully as important as that of confining argument to proper bounds.
The bill of exceptions attested by the three jurors as bystanders shows words and acts upon the part of the court which impressed upon the minds of the jury the fact that one hip was higher than the other, and must have led them to believe that such fact was of great importance in the trial of the case. It also disclosed that the acts and words of the court were commented upon in argument by counsel for plaintiff, at which time it certainly became the duty of the court to stop such argument and instruct the jury not to consider such argument or his acts and words.
The fact that the evidence is undisputed to the effect that one hip was higher than the other is not sufficient ground for holding the court's actions and words to be harmless, for there seems to have been a sharp issue as to the extent of the injuries, and it was alleged by plaintiff that his hip was injured, and, according to the bill of exceptions, argued by counsel, in effect, that the difference in the hips, as disclosed by the court's measurement, was the result of the injuries. The act of the court in lending weight and importance to undisputed evidence, when that evidence will probably be viewed as having an important bearing in showing that injury resulted from the alleged negligent act, is certainly prejudicial. The verdict was for $9,500, and is attacked as excessive. We regard it as high, and would not be authorized to assume that the words and acts of the court had no effect in arriving at such amount.
Our courts have not taken the view in cases of improper argument that it was incumbent upon the other party to ask leave to withdraw the case from the jury and continue it, or else be estopped from complaining of such argument. No such rule has been applied by our courts, we believe, except as to proceeding with a trial when a juror is discovered during the trial to be disqualified. Our attention has not been called to any case in which it has been applied with respect to errors committed by the court or objectionable argument. If the error is one, the effect of which could have been obviated by the interposition of objection and request for instruction, the failure to take such steps will preclude taking advantage of the error, but when the error is of such character that its injurious effect cannot be removed the courts will not require the doing of a futile act.
The trial court declined to approve the bill of exceptions upon two grounds: First, because he did not concur in the facts stated; and, second, because there had been no objection or exception, and he therefore believed that no predicate was laid. Had there been only the first ground, it is clear that it became his duty to file a bill of exceptions showing the facts as he recollected them. There can be no doubt that something occurred upon which the affidavits of the jurors were based; and, if the principal facts or details were incorrectly stated, the true facts, I as recollected by the court, should have been stated. We do not regard the second objection as being a conclusive answer to a demand for a bill of exceptions, as is hereinbefore disclosed. The fact that no exception was taken was disclosed by the bill, and could have been made as positive as desired by qualifying the bill, or stating it in such bill as the court might deem to correctly state the facts. The appellee would not have been deprived of any legal right by so doing, for if the failure to object rendered the bill defective, it would not support an assignment of error in the appellate courts.
When the bystanders' bill was filed, the appellee did not avail himself of his statutory right to show by affidavits wherein the bill was incorrect, but elected to depend upon what he regarded to be defects rendering the bill a nullity. This course may have placed the facts before this court in a light which is unjust to the trial court, but we must take the record as we find it, and believing that there has been such a compliance with the law as makes the bill a valid part of the record, and that it shows prejudicial error, we conclude there was no error in our judgment reversing the judgment of the trial court, and that the motion for rehearing should be overruled. *Page 295