Opinion. — Plaintiffs in error brought this suit to recover of defendant in error damages alleged to have been caused from the burning of cotton negligently set on fire from sparks emitted from defendant's locomotive engine, said cotton being placed on defendant's platform for shipment.
Defendant answered by (1) general denial; (2) plea of contributory negligence on the part of plaintiffs in placing their cotton on said platform where it was exposed to fire from passing engines, leaving it for a number of days on said platform uncovered and thereby exposing it to be destroyed by fire from passing engines; (3) plea that plaintiffs did not own the claim for damages sued on, but had, prior to the bringing of this suit, assigned it to the Insurance Company of North America; (4) plea of limitation, that if any cause of action accrued to plaintiffs against defendant for the burning of said cotton, the same accrued on November 5, 1890, and while the original petition in this cause was filed on October 22, 1892, no citation was issued on it until December 16, 1892, and that the failure to earlier issue said citation was at the special instance and request of plaintiffs, or due to their negligence and failure to comply with the laws of this State. The cause was tried *Page 325 by a jury, which rendered a verdict in favor of defendant, and judgment entered accordingly, from which a writ of error is prosecuted.
The first assignment complains of the charge of the court on the question of limitation. The paragraph complained of is: "If you find from the evidence that plaintiffs filed their suit within two years from the date of the destruction of the cotton in controversy, and were not guilty of any negligent act causing the delay in the issuance of the citation, then plaintiffs' cause of action would not be barred by the statute of limitation. But if you should find from the evidence that the delay in the issuance of citation extended beyond the time of two years from the time the cotton was destroyed, and that said delay was caused by the negligence of plaintiffs, or their authorized agents, or done at their instance or request, you will find a verdict for the defendant on their plea of limitation," — because it placed upon plaintiffs the burden of showing that they were not responsible for the delay in the issuance of the citation. There was no evidence tending to show that plaintiffs, or their agents, did any act causing the delay in the issuance of the citation.
The following proposition is made by plaintiffs in error under this assignment: "Where the plaintiff files his suit within the proper time, and the issuance of the citation in the case is delayed by the clerk until the period of limitation barring the action has expired, such delay does not bar the action, unless the plaintiff or his attorney directed the clerk not to issue citation upon the petition filed in the suit, and where there is no evidence showing such direction, it is error to submit the question of limitation to the jury."
Plaintiffs' cause of action accrued on November 5, 1890. On October 22, 1892, the petition was filed, but no citation was issued thereon until December 16, 1892. The plaintiffs' attorney mailed the petition to the clerk on October 22, 1892, and instructed him to issue on it immediately. In two or three days afterward he wrote the clerk again requesting if he had not issued citation to do so immediately. Subsequently he saw the clerk, wrote out the citation, and had the clerk to sign and issue it, which was on December 16, as before stated, and same was duly served. The clerk testified that he did not issue because he thought the filing of the petition was sufficient; that it was six months before the beginning of the next term; that he had so much other work on hand he laid the petition away until he had time, and that he issued as soon as plaintiffs' attorney informed him of the importance of issuing immediately.
We do not think the proposition of plaintiffs is correct. The plaintiff can be guilty of other conduct or laches which will fail to arrest the running of the statute. The filing of the petition with the clerk of the proper court is the commencement of the suit (Rev. Stats., art. 1177), and will arrest the running of the statute if there is a bona fide intention on the part of plaintiff to prosecute his suit, and he uses reasonable diligence to have process issued and served at once. When a petition *Page 326 is filed, it is the duty of the clerk to issue citation immediately, and the plaintiff has the right to presume that the clerk will issue within a reasonable time. If, however, the clerk fails to do his duty, it is incumbent upon plaintiff to see that it is done. If he directs the clerk not to issue, or if he fails to use proper diligence in the respect indicated, the statute will continue to run, though the petition is filed before the period of limitation has expired. Where citation has been delayed, after the petition is filed, until the period of limitation has expired, it is then a question for the jury to determine whether or not the plaintiff has been negligent in not causing citation to sooner issue. Ricker v. Shoemaker, 81 Tex. 22 [81 Tex. 22]; Railway v. Flatt, 36 S.W. Rep., 1031; Wood on Lim., sec. 289.
The charge of the court, however, is erroneous, in that it charged on a state of case not made by the evidence, in that it charged the jury they must find the plaintiffs were "not guilty of any negligent act causing the delay in the issuance of the citation," or if the delay was "done at their instance or request," etc. There is no evidence that plaintiffs did any act causing the delay, or that the delay was at the instance or request of plaintiffs. But, on the contrary, the evidence shows without contradiction that plaintiffs' attorney requested citation to issue. If there was any negligence on the part of plaintiffs, it was in non-action in not having citation to sooner issue. Therefore, the only question for the jury's consideration under the facts was, whether or not plaintiffs or their attorney were negligent in not taking further action to cause citation to issue before they did.
The evidence fails to justify the charge of the court in the particulars indicated. "A sound proposition of law upon a supposed state of facts which there is no evidence to support, when given in a charge, is calculated to mislead the jury, and is reversible error." Railway v. Wiseman, 66 Tex. 674; Ivey v. Williams, 78 Tex. 685.
Appellee submits the proposition, to the effect, that if there was error in the charge it was harmless.
1. That the jury did not consider the issue of limitation. In support of this proposition the affidavits of seven of the jurors who tried the case were submitted on the hearing of the motion for a new trial, to the effect that they did not consider said issue in reaching a verdict.
It is clear that the affidavits of jurors will not be considered to impeach their verdict on the ground of misconduct of the jury. Railway v. Gordon, 72 Tex. 44; Bank v. Bates,72 Tex. 137; Letcher v. Morrison, 79 Tex. 240 [79 Tex. 240]. While no authority is cited, nor have we been able to find any, to the effect that affidavits of jurors should not be considered under the circumstances of this case, yet, we are of the opinion that such practice is improper. Such affidavits should only be allowed in support of a verdict when the verdict is attacked for misconduct of the jury. To allow an issue to be made in a motion for a new trial upon affidavits of the jurors as to what fact, ruling or charge of the court they considered or failed to consider, or influenced them in *Page 327 arriving at a verdict, would detract from the sanctity of a verdict and render it uncertain and of little value.
The second proposition is that counsel for defendant in error, on the trial of the cause, "stated in the presence of the jury that the defendant, in his opinion, had probably not made out its case of limitation, and therefore he did not urge that defense to the jury." Counsel for plaintiffs in error, on the hearing of the motion for new trial, showed by affidavit that the statement was made, but said issue was not withdrawn but submitted by the court, and it was the duty of the jury to pass upon it.
Being an issue duly presented, and one upon which the jury could have found against plaintiffs in error, and this court being unable to say that "it is clear that the jury were not misled" by the erroneous charge of the court, the judgment must be reversed. Railway v. McCoy, 38 S.W. Rep., 36.
The trial court submitted to the jury for determination the issue made by the plea of the defendant that the claim sued on had been assigned by plaintiffs to the Insurance Company of North America. This is assigned as error, the contention of plaintiffs in error being that as all the evidence on this issue was in writing, it was the province of the court to construe it, and should not have been left to the jury. We think this contention correct. Ivy v. Williams, 78 Tex. 685.
The error was harmless, as the record shows the jury did not consider this issue in reaching a verdict, and we would not discuss it, except for the fact that the judgment is to be reversed. We deem it proper to say that, in our opinion, the evidence does not show an absolute assignment of the claim to the insurance company, and under the facts the plaintiffs were authorized to sue, and should they recover judgment, it would be a complete bar to an action by the insurance company on such claim. The insurance company having paid the claim, had an equitable right thereto, and was a proper but not a necessary party to the action, as there is nothing to show that defendant in error had any defense as against said insurance company alone. Railway v. Gentry, 69 Tex. 625.
The other assignments of error complain of the court's charge on negligence and contributory negligence, all of which we think are not tenable. The charge on these questions is in strict accord with the charges approved in the case of Martin v. Railway, 87 Tex. 117; Whiteman v. Willis,51 Tex. 421.
The judgment is reversed and the cause remanded.
Reversed and remanded. *Page 328