Plaintiff’s petition contained all the allegations of injuries physical and mental necessary to support a verdict for actual damages resulting from the wrongful and negligent conduct of appellant’s employes in refusing to stop its passenger train at Englewood, a station on appellant’s road, which train appellee desired to board.
The facts constituting the cause of action were set forth with particularity, and the prayer was for judgment for $6‘ actual and $2000 exemplary damages and for general relief.
The court’s charge was an admirable exposition of the law applicable to the case made by the proof.
This instruction was given the jury: “If you find for plaintiff you will not include in your findings any amount by way of punishment to defendant, but will limit your findings to actual extra expense incurred, if any, and to compensation to plaintiff for the mental and physical suffering, if any, caused by defendant’s negligence, if you find such negligence without fault on the part of the plaintiff.”
The jury rendered a verdict for the sum of $391 actual damage.
Appellant assigns as error, that “the court erred in not dismissing this cause from the docket for want of jurisdiction to try the same after it had limited plaintiff’s recovery to nothing but actual damages, because the amount of actual damages claimed in the plaintiff’s petition was only for the sum of six dollars.”
This involves the question, under our system of pleading, when the facts are stated constituting in law the elements of actual damages only and upon Avhicli a recovery for that alone can be had, does the averment of the pleader that they are exemplary damages and his prayer for a recovery as such, change the legal effect of his statement of the case?
As we have said, all the facts which would afford a basis for the recovery of actual damage were plainly set forth, and the allegation was made that they were actual damages and exemplary damages, and the prayer was for six dollars actual damages and two thousand dollars exemplary damages. The verdict was for $391 actual damage.
We are of opinion that if facts are stated to which the law attaches a well defined meaning, the mere application of an erroneous term to such statement of facts would not affect its legal import.
It is not the name the pleader gives the facts stated which makes them actual or exemplary damages, but it is the effect in law of the facts pleaded which makes them the one or the other.
We do not think the court erred in not dismissing the case upon the ground assigned.
The second error assigned is that the court erred in not setting aside *51the verdict of the jury and granting the defendant a new trial, because the verdict is not sustained by the pleadings, plaintiff in his petition having prayed for judgment against defendant for the sum of $6 actual damages and §2000 exemplary damages; and the court having limited his recovery to actual damages a verdict and judgment for $391 is not supported by the petition.
We think a discussion of this assignment is unnecessary, because the reasons given in the disposition made of the first error assigned, if correct, are applicable with equal force to the second.
The cases cited by appellant we do not think are in point. The case of Moore v. Guest, 8 Texas, 117, was where the judgment annulled an entire will, and the prayer sought to annul only one provision of it. Hogan v. Kellum, 13 Texas, 399, was a case Avhere it was held that if the property or its value is sued for a recovery could not be had for both the property and its value.
Parker v. Beavers, 19 Texas, 410, decides simply that where relief is asked upon the ground of a parol trust, accompanying the execution of a deed, a recovery can not be had on the ground of mistake.
The case of Menard v. Sydnor, 29 Texas, 259, holds that a general judgment can not be rendered against a married woman unsupported by allegations of fact, such as would make the debt sued for a charge on her separate estate. Denison v. League, 16 Texas, 406, decides that under a prayer for specific and general relief damages can not be allowed inconsistent with the facts stated in the petition.
In the case we are considering there was a prayer for actual damages and exemplary damages, and the recovery was not only consistent with the facts stated, but no other recovery could have been had consistently with the facts. We have no doubt of the correctness of the rule announced in Belo & Co. v. Wren, 63 Texas, 727; Kauffman & Runge v. Wicks, 62 Texas, 236, and Zeiliff v. Jennings, 61 Texas, 472, to the effect that actual and exemplary damages should be separately presented and submitted. But in the case under discussion actual damage only was proven, and that character of damage submitted to the jury in the charge, and it was only upon this character of damage that a recovery Avas had.
It is complained that the court erred in not setting aside the verdict of the jury and granting defendant a new trial, because the amount rendered by the jury in the case Avas reached by lot, and not by a fair expression of opinion of the jury.
It appears from an affidavit contained in the record, made by N. G. Smith, one of the jurors trying the case, that “the jury, upon their retirement, after deliberating upon the case, agreed that plaintiff was entitled to recover a judgment, but were not able to decide upon the amount. Some of the jurors made the proposition that each one of the jury should put down on a piece of paper the amount which he thought *52plaintiff was entitled to recover, which several sums were to be added together and divided by 12, and the quotient was to be the verdict in the case. They also agreed before the amounts were set down and the result known to abide by the result, and that after the various sums set down by each juror were added together and divided .by 12 the quotient was found to be S3 91, and the verdict was thereupon written up for that amount, and returned into court as the verdict of .the jury in the case.”
It has been decided in several cases in this State that the affidavits of jurors should not be received to impeach their verdict. Little v. Birdwell, 21 Texas, 612, and cases there cited; Handley v. Leigh, 8 Texas, 129. In a case involving this question (Pleasants v. Heard, 15 Ark., 411) it was said “that the affidavits of jurors could not be received to impeach their verdict for mistake, or even in respect to the merits, nor to prove irregularities or misconduct either on his own part or that of his fellows.”
The reason is too obvious to require discussion or explanation. There was no error in the action of the court in this respect.
The remaining assignments of error relate to the sufficiency of the evidence to support the judgment, and complain that the verdict is excessive and therefore should be set aside.
The only issue of fact in the case about which there appears to have been a conflict in the evidence was with reference to the manner in and locality at which appellee “flagged” the train, and whether appellee’s signals to the employes of the train were seen, or could by the use of proper care on their part have been seen by them. There was the evidence of the appellee and of Smith in the case, from which the jury it appears believed these facts. If appellee suffered injury thereby, he was entitled to a recovery. Hull v. E. L. & R. Ry. Co., 66 Texas, 620.
The evidence of appellant’s employes upon this question, if believed by the jury, would have supported a verdict for appellant. This issue was fairly submitted to the jury under instructions of which the appellant does not complain. To set aside the judgment on the ground of the insufficiency of the evidence, under these circumstances, would be in violation of a universally established rule where jury trials prevail.
We can assign no reason for saying that the verdict in this case is excessive, and we are of opinion that the judgment should be affirmed.
Affirmed.
Adopted October 30, 1888.
[Judge Collard did not sit in this case.]