Sam Love was killed as the result of a collision between his truck, while being driven by his employee, J. L. Hawkins, and a truck owned by H. W. Stotts, driven by Stotts' employee, J. M. Mince. The trial resulted in a jury verdict upon which the Court rendered judgment for the plaintiffs, Mrs. Lessie Love (for $4,255) and Herman Love (for $1,000), the wife and *Page 309 minor child, respectively, of the deceased, Sam Love. The defendant, H. W. Stotts, has appealed.
Appellant's first point is that the court erred in refusing to define the term "new and independent cause," used by the court in its definition of proximate cause. Appellant duly tendered a correct definition and asked that it be given. It was refused. Appellee answers said contention as follows: (1) That the evidence did not raise the issue of new and independent cause, and (2) that, if it did, it was not reversible error for the court to refuse to define the term because the issue of unavoidable accident was submitted; and (3) because the same "issue" claimed by appellant to constitute a new and independent cause was submitted. We think appellee's contentions are untenable. The evidence did raise the issue of a new and independent cause. There was evidence that just prior to the collision the driver of Love's truck was blinded by the glaring lights of automobiles driven by persons not connected with the accident. We do not understand that necessity for the definition is obviated by the fact that the issue of unavoidable accident was submitted to the jury. Appellees seem to be of the opinion that appellant relies upon testimony that Hawkins, driver of Love's truck, saw a sign on his righthand side of the highway which he mistook for a culvert and that Hawkins would have pulled further to the right and avoided the collision had he then known, as he later learned, that the object he saw, as the trucks approached each other before the collision, was a road sign and not a culvert, as raising the issue of a new and independent cause. As heretofore stated, without any reference to the matters just mentioned, we think the evidence that the driver of Love's truck was blinded by the glaring lights of an automobile driven by a third person was sufficient to raise the issue. We think the following authorities require a reversal of the judgment because of the refusal to define the term "new and independent cause." Orange N.W. R. Co. v. Harris, 127 Tex. 13, 18;89 S.W.2d 973; Greer v. Thaman, Tex.Com.App., 55 S.W.2d 519, 521; Dixie Motor Coach Corp. v. Galvan, 126 Tex. 109, 86 S.W.2d 633, 634; Tarry Warehouse Storage Co. v. Duvall, 131 Tex. 466, 115 S.W.2d 401, 405; Phoenix Refining Co. v. Tips, 125 Tex. 69, 73, 81 S.W.2d 60; Robertson Mueller v. Holden, Tex.Com.App., 1 S.W.2d 570, 571; Southland Greyhound Lines, Inc. v. Cotten, 126 Tex. 596, 91 S.W.2d 326, 328.
Appellant alleged in his motion for a new trial that during the deliberation of the jury, "It was stated and discussed and considered that the defendant in this case was protected by liability insurance, and that (the) Insurance Company would have to pay the verdict." In an attempt to establish said allegations of misconduct, some of the jurors were called and testified on the motion for new trial. Their testimony, so far as it is relevant to said issue, is as follows:
The juror A. L. Roden testified on direct examination by Judge Newton:
"Q. While you were in the jury room deliberating on this case, did any of the jurors mention anything about the truck of Mr. Stotts being a bonded truck? A. It was mentioned.
"Q. What was said? A. Some of them, I think, said he was probably hired by the year by the insurance company.
"Q. There wasn't any discussion of it? A. No, sir.
"Q. Just mentioned? A. Yes, sir.
"Q. And didn't somebody say, when it was mentioned, you shouldn't discuss that? A. Yes, sir.
"Q. And there wasn't any further remarks about it? A. No, sir.
"Q. They didn't discuss whether the bonding company would have to pay it, or anything? A. No, sir.
"Q. Didn't state that to be a fact? A. No, sir.
"Q. And the insurance company, they presumed, was paying the Dallas lawyer's fee? A. They figured it was." *Page 310
Mr. New testified:
"Q. Some juror mentioned it? A. Yes, it was mentioned and I said, `Gentlemen, I don't think we are supposed to discuss that,' and somebody says, `I don't think so,' and I said, `That is the way I understand it,' and so far as I know, it wasn't discussed any further.
"Q. Do you remember anything being said about the attorney's fee? A. No, sir, I don't.
"Q. Or the Dallas attorney, and that the insurance company was to pay his fee? A. No, sir.
"Q There wasn't anything else you remember? A. No, sir.
"Q. And there wasn't any discussion of it? A. No, sir, it was dropped."
Mr. Floyd testified:
"Q. Do you know what was said? A. Someone just asked if it was insured and somebody said we was not supposed to discuss that.
"Q. Was anything said about attorney's fees? A. I didn't hear anything about attorney's fees.
"Q. That is all you heard about insurance? A. Yes, sir.
"Q. Did you hear anything about the Dallas attorney, or why he was appearing? A. No, sir.
"Q. It was dropped right there? A. Yes, sir."
Mr. Clonts testified:
"Q. Was anything said about the truck being insured? A. Not any more than that, I don't think.
"Q. In reference to this conversation that they had a Dallas lawyer and must have had insurance, was that the way the matter was brought up as to the truck being insured? A. I think so. As well as I remember, that was all that was said about it.
"Q. And as soon as it was mentioned, somebody said you wasn't to discuss that and it was dropped? A. Yes, sir.
"Q. There wasn't any discussion about it? A. No, sir.
"Q. It wasn't stated as a fact then? A. No, sir.
"Q. They were just surmising about it? A. That's right."
Mr. Bohannon testified:
"Q. In connection with that was anything mentioned about the attorney from Dallas? A. Really, I couldn't say for sure, but I think it was mentioned, maybe, that he was an insurance attorney, something like that was the general opinion.
"Q. What you stated is about all you heard? A. Yes, sir.
"Q. It wasn't stated as a fact? A. No, sir.
"Q. Somebody said you wasn't supposed to discuss those things and it was immediately dropped? A. Absolutely.
"Q. Wasn't any discussion of it? A. No, sir."
Mr. Bowden testified:
"Q. Did you make a statement to Mr. Stotts or his representative? He talked to you, didn't he? A. Some man, I believe his name was Crow.
"Q. Was Mr. Stotts with him? A. There was somebody in the car; I don't know who it was.
"Q. They asked you, didn't they, this question — with reference to insurance, if they thought Mr. Stotts had insurance and, if so, how much would the insurance company stand of the loss, and you told them you thought it was mentioned but it wasn't considered when the trial was being discussed? A. That's right.
"Q. Do you know anything about the Dallas attorney being mentioned? A. No, sir, I do not.
"Q. You don't remember anything about that? A. No, sir.
"Q. It wasn't discussed? A. No, sir.
"Q. Somebody said you wasn't to talk about that and it was dropped immediately? A. Yes, sir, that's right."
Mr. Laquey testified:
"Q. It was discussed that Mr. Stotts' truck carried insurance? A. No, they just brought it up.
"Q. They mentioned it? A. Yes, sir, but it wasn't discussed.
"Q. Did anybody say anything about attorney's fees of the Dallas lawyer, or the reason he was here? A. No, sir, we didn't know anything about that.
"Q. Nobody didn't say it was? A. No, sir.
"Q. All that was said somebody just asked the question? A. If it was a bonded truck.
"Q. And somebody said you weren't supposed to discuss that and it was dropped right then? A. Yes, sir."
Mr. Simmons testified:
"Q. Do you remember hearing anything concerning anything about insurance? A. There was somebody mentioned insurance and they said that wasn't to be discussed.
"Q. Do you remember what they said? A. No, sir, I don't.
"Q. With reference to the insurance? A. No, sir, I don't remember.
"Q. Did they say anything about the Dallas attorney, the reason why he was here? A. No, sir, I don't remember hearing that.
"Q. All you remember is that insurance was mentioned? A. Yes, sir.
"Q. You don't remember who mentioned it? A. No, sir.
"Q. And it was dropped right then? A. Yes, sir."
The Supreme Court of Texas has held that the effect of Texas Rules of Civil Procedure, rule 327, is to abolish the former rule that where misconduct of a jury is shown a reversal must follow, unless it is shown beyond a reasonable doubt that such misconduct did not affect the verdict. Under Rule 327 the burden is now on appellant not only to prove, by a preponderance of the evidence, that the jury was guilty of misconduct, but also to show that the misconduct probably resulted in injury to him. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462, 464. The question presented is whether it is shown that jury misconduct probably resulted in injury to appellant. Even under the rule that existed prior to the passage of Rules of Civil Procedure, rule 327, the decisions were to the effect that a casual mention of insurance, promptly rebuked by the foreman or some other juror, did not constitute reversible error. Bradley v. Texas P. Ry. Co., Tex.Com.App., 1 S.W.2d 861; Sproles Motor Freight Lines, Inc. v. Long, 140 Tex. 494, 168 S.W.2d 642, 644. In this case there was no evidence, as there was in the Barrington-Duncan and many other cases, that anyone stated to the jurors as a fact that appellant was protected by insurance. Since the court overruled the motion, it is our duty, in the absence of findings of fact by the court, to construe the testimony of the jurors in the most favorable light of which it is susceptible from the standpoint of appellees. Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 192, 53 S.W.2d 770; Menefee v. Gulf C. S. F. Ry. Co., Tex. Civ. App. 181 S.W.2d 287; Tumlinson v. San Antonio Brewing Ass'n, Tex. Civ. App. 170 S.W.2d 620. Applying this rule, we presume that the trial court concluded that the facts were one or more jurors "surmised" or "wondered" whether appellant's truck was insured and his lawyer represented the insurance company; that there was no discussion of the matter; that when the remark was made other jurors promptly called attention to the fact that they were not supposed to discuss such matters, and they were not thereafter mentioned. We cannot say that it reasonably appears from the entire record that injury probably resulted to appellant as a result of such remarks in the jury room; therefore, the point is overruled. Rules of Civil Procedure, rule 327; McCullough Box Crate Co. v. Liles, Tex. Civ. App. 162 S.W.2d 1055,1056, writ refused; Sproles Motor Freight Lines v. Long, 140 Tex. 494,168 S.W.2d 642, 644. We have eliminated from the testimony of the jurors matters not pertinent to the quoted allegation from defendant's motion for new trial. All the jurors testified that their verdict was not affected by the remarks referred to. Such testimony is "without force or effect, and may not be considered by the court in passing upon the question of probable injury." City of Houston v. Quinones, Tex.Sup.,177 S.W.2d 259, 263. Therefore, we have also deleted such testimony from our statement of the evidence on the motion for a new trial.
We overrule appellant's fourth point, to the effect that the jury's finding that the driver of Love's truck did not fail to keep a proper lookout was clearly contrary to the overwhelming preponderance of the testimony. Appellant contends that the testimony of Hawkins and A. C. Love show that neither of them could have been keeping a proper lookout; that both, immediately prior to the collision, thought they saw a culvert, when, as a matter of fact, what they saw was a road sign. They conclude that this mistake showed they were not keeping a proper *Page 313 lookout. There was evidence that shortly prior to the collision Love's truck crossed a culvert; that immediately before the collision Hawkins and A. C. Love saw an object along their right-hand side of the road that they thought was a culvert, but which proved to be a sign. There was evidence that Hawkins drove very close to the sign and off of his side of the paved surface of the highway. There was also evidence from which the jury could have concluded that Love's truck was driven so far off of the pavement on its right hand side that it did strike this sign and knock down a portion of it. Hawkins testified that before the collision, on account of a blinding light, he pulled far to his right, leaned out of his cab and watched the edge of the pavement on his side and kept to his right as he drove slowly onward. The fact that he testified he was to some extent blinded by the lights and mistook the sign for a culvert certainly did not have the effect of destroying all of his testimony tending to show that he was keeping a proper lookout. Lockley v. Page, Tex.Sup., 180 S.W.2d 616, 618.
Appellant's remaining points present questions that need not arise on another trial, and will, therefore, not be discussed. The judgment is reversed and the cause remanded.