The opinion
On Motion for Rehearing
Appellant’s assignment in its motion for rehearing that we erred in refusing to consider its point that the finding of the trial court that there was no discussion by the jury with reference to insurance prior to the signing of the verdict by the foreman was against the overwhelming weight and preponderance of the evidence is sustained. The following language of the opinion in Price v. Biscoe cited by us: “Either finding would support his order overruling the motion for a new trial, and his finding is conclusive in the appellate courts” (italics ours), when considered with the language immediately preceding it (170 S.W.2d loc.cit. 731, par. 2, last col.) and the testimony in that case is applicable to Courts of Civil Appeals only where the trial court’s findings are supported by sufficient evidence. Estep v. Bratton, Tex. Civ.App., 24 S.W.2d 465 , loc.cit. 469; Monkey Grip Rubber Co. v. Walton, 122 Tex. 185 , 53 S.W.2d 770 , loc.cit. 773, par. 4.
When misconduct of the jury is alleged as a ground for a new trial, though the evidence as to such misconduct be conflicting, the trial court’s finding thereon is subject to review by the Court of Civil Appeals. Dallas Ry. & Terminal Co. v. Garrison, Tex.Com.App., 45 S.W.2d 185 ; 31 Tex.Jur. page 176, Sec. 164. The same rule applies in this case as to the finding to the effect that all the questions had been answered and the verdict had been signed by the foreman before the discussion about insurance occurred. We therefore withdraw the sentence appearing in the last paragraph of our original opinion reading: “We are not here concerned whether such finding is against the overwhelming weight or the preponderance of the evidence.”
We have again read all the testimony offered at the hearing on the motion for a new trial. In view of the conflict between the positive testimony of the foreman Erhard and the jurors Lewis and Johnston as to the stage of the deliberations at which remarks about insurance were made and the vague and indefinite character of the testimony of the other jurors as to the relative times during their deliberations when they heard the remarks about insurance, we are unable to say that that portion of the trial court’s findings which we deem material, i.e. that the discussion about insurance occurred after all the questions had been answered, is so overwhelmingly against the weight of the evidence as to be clearly wrong. 3 Tex. Jur. page 1107, Sec. 773. We therefore overrule this point.
Appellant also assigns error in our holding that the blackboard comes within the category of “other testimony” mentioned in Rule 327, Texas Rules of Civil Procedure, and that Rule 327 is applicable in determining whether the error of the trial court in instructing the bailiff to take the blackboard into the jury room requires a reversal. We are still of the opinion that Rule 327 -as interpreted in Barrington v. Duncan controls, although we seriously doubt whether the blackboard does come within the category of “other testimony” mentioned in such rule. If it does not, it is indeed difficult to point out just what portion of the rule covers this particular kind of error. We can discern no valid reason why the rule should not apply to this situation as well as to the other matters therein specifically mentioned. As indicated in our original opinion, if we be in error on this point and the rule of the Chapin case controls, our holding is the same.
The motion for rehearing is overruled.