. I cannot concur with the majority in overruling the appellee’s motion for rehearing. In Houston & T. C. Ry. Co. v. Gray, 105 Tex. 42, 143 S. W. 606, the Supreme Court, speaking through Chief Justice Brown, said: “The judge who tried the case seems to have acted promptly and fairly in the investigation, and we know that he could form safer conclusions from examining the jurors than this court can from the record. There is much in looking at the man who testifies.”
In Bendelin v. Thompson, 33 S.W.(2d) 220, 222, the El Paso Court of Civil Appeals said:
“The testimony of the jurors as to whether they had previously decided how the case should terminate and were answering the interrogatories to bring about such result is very conflicting, and the trial court, having heard the witnesses testify, was in a much better position to judge of their credibility and the weight to be given to their testimony than we could possibly be from a mere examination of the record. * * *
“Matters relating to the conduct of a trial are largely within the discretion of the trial court, and rulings on these matters will not be disturbed by a reviewing court except for a manifest abuse of discretion. * * *
“This principle applies to rulings of the trial court on'the matter of misconduct of the jury.” ■
In International Great Northern Ry. Co. v. Cooper, 1 S.W.(2d) 578, 580, by the Commission of Appeals, approved by the Supreme Court, it is said: “The trial court heard-evidence as to the amount of the verdict tainted with misconduct', and found that a remit-titur of $7,500 would cover any possible portion of said verdict so tainted. The finding of the trial judge is abundantly supported by the evidence, and his findings should not be disturbed, unless the evidence leaves it reasonably doubtful as to whether the amount remitted was sufficient to cover the part tainted.”
See Galveston Electric Co. v. Biggs, 14 S.W.(2d) 307, by the Galveston Court of Civil Appeals. In that case the trial court found that $2,118 of the verdict was not tainted with misconduct, and suggested a remittitur down to that amount, which was duly filed.
The writer is of the opinion that the former judgment should be set aside and the judgment of the trial court affirmed, or, at least, that the cause should be certified to the Supreme Court.