On Motion for Rehearing.
The facts concerning the misconduct of juror Hoffman are undisputed. He asked counsel for appellee to give him a free forty-mile ride from Jourdanton to San Antonio, which he took; at another time he approached appellee and one of appellee’s counsel, as they got in the former’s car to drive from the courthouse to their hotel for lunch, and by his attitude, but not by words, asked them ■to let him ride with them, which he did; by the same silent process after lunch he rode with appellee and both of his counsel from the hotel to the courthouse. In the first instance he made his request of counsel in the courtroom, following adjournment of the trial for the day, in the presence of others, among them one of appellant’s counsel. Both subsequent 'transactions were at the noon hour in the presence of the usual courthouse and hotel crowds, with no apparent thought of concealment. Upon neither" of the three occasions was 'the ease mentioned. It is conceded by appellant, is apparent from the evidence, was impliedly found by the trial court, and presumed from the high standing of counsel, that there was no intentional impropriety ■in their conduct; but the degree or nature of the juror’s reaction to the occurrences is a matter of the merest conjecture, since his attitude, conduct, or words in the secret deliberations of the jury, are not disclosed iu the record. If in those deliberations he championed the cause of appellee and wrung from the other jurors the verdict they returned for appellee, or if he was silent in those deliberations, and voted for appellee because of the attitude of his fellows, or from an unbiased appraisal of the merits of appellee’s cause, is not shown by the record. The entire matter rests in conjecture.
Appellee grounds his motion for rehearing upon the contention that it was within the discretion of the trial court to determine the questions involved in this appeal, and that, under the rule that a trial judge’s findings may not be disturbed on appeal except in a clear case of abuse of that discretion, the judgment should be affirmed.;
The usual question of whether the trial judge abused his discretion in refusing a new trial is not involved, however. The facts set up by appellant as constituting misconduct are undisputed, are frankly conceded by appellee, and therefore did not raise an issue of fact to be resolved by the trial judge within his discretion. On the other hand, the issue of whether those facts constitute misconduct is one of law, determinable by this court, which is not bound by the trial judge’s decision thereof. The issue of whether the •misconduct was prejudicial to either party is usually one for the trial judge, whose finding will not be disturbed upon appeal, unless it is determined that he abused the wide discretion accorded him in such matters. That issue, however, was not -raised by evidence in the trial court whereby the discretion of the trial judge was invoked, but was left wholly to conjecture. The appeal, then, does not involve the matter of the discretion of the trial judge. It is a question of law throughout, which has been relegated to this court.
In this situation the majority of this court adhere to this conclusion: That the transactions amount to obvious misconduct upon the part of the juror whereby be sought and obtained favors of and unnecessary contact with appellee and his counsel during the course of the trial of appellee’s rights; that, since appellee and his counsel participated in this misconduct, even though thoughtlessly and with no improper intent, appellee assumed the' burden of showing that appellant *348was not thereby prejudiced, and, failing to meet this burden, appellee will not be permitted to assert that he obtained no advantage by reason of the misconduct. Appellee’s motion for rehearing is overruled.