Motion for Rehearing.
The appellees, C. T. Lewis, and wife seek a rehearing upon the grounds that: (1) The particular policy issued in this case by the American Indemnity Company did in fact provide, although not alleged in the petition, for indemnity against “injury to or death of any person or persons through such operation or such vehicles,” and (2) the remittitur of $1,-500 here offered be allowed as curing any error of misconduct of the jury. In respect to the policy in suit, the affirmance was hipon the ground that its terms -did not include recovery for wrongful death. Taking the suggestions-now made as to the terms of the par*657ticular policy issued in tlie case, a recovery, if at all, would be upon a policy of insurance resting purely under contract as distinguished from and entirely apart from a policy issued, and intended to be issued, in compliance with tbe terms of tbe statute. Tbe affirmance therefore should be without prejudice in any suit brought by the appellants C. T. Lewis and wife on such policy as a policy rising out of pure contract and independent of statutory requirement.
In the motion for rehearing in the case of Estep v. Bratton (Tex. Civ. App.) 24 S.W.(2d) 465, 471, the conclusion of Associate Justice Funderburk is strikingly correct, viz.:
“The record carries no suggestion that the alleged misconduct could have possibly influenced the verdict of the jury further than to add $2,000 to the amount of it. We have no doubt that by making the judgment $3,000 all possible influence of the misconduct will be rendered harmless. To hold otherwise would be tantamount to holding that once misconduct is shown to exist it can never be held to be harmless.”
We adopt that ruling in the present case, and accordingly grant the motion for rehearing and affirm the judgment upon the remitti-tur as here offered of $1,500; the costs of the appeal to be paid by the appellees C. T. Lewis and wife.