Suit against insurance agent to recover amount of insurance claimed requested but not issued. From judgment for defеndant, plaintiff has appealed.
The parties will be referred to herein as they appeared in the trial court. The plaintiff owned several buildings housing a night club, cafe, liquor store and truck stop service station. In 1963, plaintiff requested defendant to write a policy of insurance on the service station building. At the time plaintiff did not оwn the other buildings, but acquired them at a later date. Plaintiff had a number of policies of insurance that were рlaced with agencies other than the defendant. One of the other agencies notified plaintiff of an еxpiring policy issued through that agency, the date of such notification being apparently in January of 1967, and plaintiff notified defendant to replace the coverage represented by the expiring policy. This instruction was complied with by the defendant. However, plaintiff further contends that he also notified defendant of two other policies that had been cancelled apparently sometime in August, 1966. Plaintiff *85 contends that he requested the defendant to write $19,000.00 to replace the two can-celled policies plus an additional $10,000.00. This contention was denied by defendant. On February 5, 1967, some of plaintiff’s buildings and contents were destroyed by fire and plaintiff brought this suit against defendant for his failure to have written the additional coverage claimed in the total amоunt of $29,000.00. Upon trial to a jury, the jury found that defendant agent had not agreed to replace the two cancelled policies of $19,000.00 nor to issue the additional $10,000.00.
Plaintiff’s first point of error complains of the trial court’s fаilure to declare a mistrial during voir dire examination of the jury panel when counsel for defendant made rеference to a “previous fire” at the place of plaintiff. Plaintiff did not file a bill of exception, but brоught foward a transcript of a part of the court reporter’s record reflecting the incident. Rule 372(c) wоuld seem to obviate the necessity of a formal bill of exception in the instant case; however, the Suрreme Court has held that “the proper way to preserve objection to improper argument is by bill of exception rather than by bringing up the court reporter’s record of the argument as a part of or supрlement to the statement of facts.” Smith v. United Gas Pipe Line Co.,
Plaintiff next contends that the verdict of the jury is contrary to the prеponderance and weight of the evidence and the law. The defendant testified that plaintiff had never asked him to replace the $19,000.00 of cancelled insurance or to place an additional $10,000.00 worth of insurance on the buildings. Plaintiff testified positively to the contrary. It is well settled in our law that it is the province of the jury to рass upon the credibility of the witnesses. Edrington v. Kiger,
In his motion for new trial and on appeal plaintiff complains of jury misconduct. The alleged improper conduct is set out in an affidavit signed by the for-man of the jury and filеd in the cause. Affidavits alleging jury misconduct do not constitute evidence of the facts therein stated. Allison v. Gulf Liquid Fertilizеr Co.,
Lastly, plaintiff complains of the conduct of defendant’s counsel during the trial alleging that defendant’s counsel injеcted unsworn statements and side-bar remarks to such an extent as to prejudice plaintiff’s case and deny him а fair and impartial trial. We have carefully considered the entire record and find that the court sustained mаny of plaintiff’s objections and further on numerous occasions instructed the jury upon request by plaintiff’s counsel. Wе do not find that the remarks of defendant’s counsel were so prejudicial as to cause the jury to render an improper verdict and to warrant a reversal under Rule 434, T.R.C.P.
Affirmed.