ON MOTION FOR REHEARING
The appellees contend that if the action of the trial court in excluding the proffered testimony referred to in appellant’s points 1 and 2 and in admitting the testimony referred to in appellant’s point 6 was error it was harmless error within contemplation of Rule 434, Texas Rules of Civil Procedure. This case should not be reversed on these points unless it can be held that the exclusion and admission of such evidence was calculated to and probably did cause the rendition of an improper judgment.
Chief Justice Calvert in his article on the Development of Harmless Error in Texas, in Volume 31, No. 1, at page 1 of the Texas Law Review said:
“If any definite conclusion may be drawn from a review of the opinions of the Supreme Court listed above it is that the court is trying to make the provisions of Rules 434 and 503 serve a useful purpose; the court seems to be developing, slowly but surely, a policy of refusing to set aside or reverse judgments for errors of law committed during the trial unless in the sound judgment of the court the errors contributed in a substantial way to bring about an unjust result.”
“The modern concept of the problem seems generally to support the rule expressed in American Jurisprudence where it is said that ‘in order to warrant a reversal, the error complained of must have been prejudicial to the substantial rights of the appellant.’ ”
Appellant’s 1, 2 and 6 points are as follows:
“FIRST POINT:
The trial court erred in excluding evidence relating to the marital problems of the Riedels.
SECOND POINT:
The trial court erred in excluding evidence relating to the character and morals of Dr. Riedel.”
“SIXTH POINT:
The trial court erred in admitting plaintiffs’ Exhibit No. 21.”
The appellant Allen testified that the deceased Riedel discussed with him on two occasions the possibility of divorcing his wife Patsy. The first time was in 1964 at the house the doctor was living in before he built the new house. Allen said the doctor told him “he was going to divorce Patsy.” The appellant did not encourage the doctor to divorce his wife. The second time the deceased discussed with him the matter of divorcing his wife was on the day of the killing when Riedel said: “I am going to divorce Patsy.”
This testimony from Mr. Allen and other facts and circumstances in evidence disclosed that the court admitted evidence relating to the Riedels’ marital problems. The excluded testimony, about marital problems related to elements of the ultimate problem of dissolving the bonds of matrimony and were included in and cumulative of the more comprehensive problem of divorce which was properly admitted by the trial court.
*679The court has said in the original opinion:
“It is true, as stated by appellees, that not all evidence relative to the marital problems of the Riedels and the morals of Dr. Riedel was excluded.”
I have considered all the evidence relating to the marital problems of the Riedels and the character and morals of Dr. Riedel which were admitted and have considered the evidence which was excluded. The excluded evidence was substantially the same and cumulative of the evidence that was admitted. Points one and two should be overruled.
I would hold that appellant has failed to discharge his burden of showing that the admission in evidence of plaintiffs’ exhibit 21 caused the rendition of an improper judgment.
Appellant’s Sth point is as follows:
“The misconduct of the jury in using personal knowledge of jurors in determining answers to damage issues.”
Four of the jurors testified on appellant’s motion for a new trial. At the conclusion of such testimony, it was stipulated that all the jurors had been subpoenaed and were present and that the other eight jurors’ testimony would be generally and substantially the same as the jurors who testified.
The effect of the testimony of some of the jurors was that they related their personal experiences with regard to costs of a college education during their deliberations.
The juror, Mrs. Jeffs, testified and was asked: “Tell us whether or not any of the jurors related their personal experiences in connection with that cost?” and she answered: “I don’t remember any juror relating any personal experience. Thurman Jay is the only one that I know of that had a child in college at this time, and he did not use a figure at all that I remember.”
The original opinion states “contrary to appellees’ contention there was no dispute about the fact that misconduct occurred.” In my opinion, Mrs. Jeffs’ testimony makes an issue on misconduct.
The trial court has found that misconduct did not occur on conflicting evidence. Under such circumstances the finding is binding on this court.
I would set aside our original opinion, grant appellees’ motion for rehearing and affirm the judgment of the trial court.