On Motion for Rehearing.
The appellee filed her motion for a rehearing in this case urging as error the action of this court in reversing the judgment of the trial court in her favor for the sum of $12,000 on account of the misconduct of the jury.
She also filed a remittitur in the sum of $7,000 if her motion for rehearing is overruled, provided the judgment of the trial court should be affirmed for the sum of $5,000.
The testimony shows without controversy that all the special issues submitted by the court 'pertaining to the liability of the appellant had been determined and answered in favor of the appellee before the misconduct of the jury occurred, for which the judgment was reversed.
The only issue answered after the misconduct of the jury was the one assessing the amount of damages appellee was entitled to recover. Prior to the misconduct discussed in the original -opinion, a ballot had been taken by the jurors on the amount of damages to be assessed. The smallest amount voted for by any juror was $4,000, and the greatest amount was $20,000. After the discussion of the extraneous matters that constituted the misconduct, a verdict for $12,000 was returned and a judgment entered therefor.
Under the record, the misconduct of the jury could not have affected the verdict on any issue except the amount of damages. As • the smallest amount any juror voted to assess before the misconduct was $4,000, the only injury that appellant could have suffered was the amount of the verdict in excess of $4,000.
If appellee, within ten days, will file-a re-mittitur of $8,000, the motion for rehearing will be granted, and the judgment of the trial court reformed and rendered for appel-lee for the sum of $4,000; otherwise, the *527judgment will be reversed as in the original opinion.
This action is based on the holding in the case of Estep v. Bratton et ux. (Tex. Civ. App.) 24 S.W.(2d) 465, 471, on the motion for rehearing and the authorities cited, and also on the case of Texas & N. O. Ky. Co. v. Stevens et'al. (Tex. Com. App.) 24 S.W.(2d) 9.