Trousdale v. Texas & N. O. R. Co.
264 S.W.2d 489
Tex. App.
1953
Check Treatment

*1 assign error to 6 and 7 relation Points maintaining the marital states, support very sufficiency of the evidence to in right which to dismissal judgment custody example insofar as it awards broad See for terms. Jones Aubey 309, appellees Virginia Jones, How- children to S.W.2d 949. ever, points as Mr. and Mrs. Durst. These are these are dicta far statements present ample sup The evi- There is evidence to case is concerned. overruled. port impression by that no dence us with the the award made the trial court. leaves ground Mary believing that a reconcil- This evidence is the effect that exists Aubey, Jr., Aubey, children, appellee iation the mother between C. is suffer J. occur; appellant Aubey Mary ing from would some sort of mental disorder Mary Aubey which we note that has never claim- makes it best for the interests of the ed that she had no to a divorce under children that she not custody; have the tuid right evidence, true, wanting being proper persons and her motives for this to have custody a dismissal are left to inference. Concern- the appellees named, are the power discretionary ing to dismiss a di- whom the children, trial court awarded the' Hornbeck, suit, appellees, vorce see Hornbeck v. 316 because said who had the chil 208, 171, 25 N.W.2d where dren filed, Mich. the Su- when these suits were are the preme persons Michigan Court of seems to have who have had the children in their upon acted an inference as to the success- so often long periods requesting ful wife’s motive a dismissal. of time. The matter is not controlling but Boyer Boyer, Colo. testimony by P.2d there is Virginia Aubey to the Caprita Caprita, 145 Ohio St. 60 N.E. effect that the father of the children was 483. temporarily in her house. adjudicate These comments the Points of assigns Point 9 as error that the assigned. Error judgment of the trial duly requested trial ap court was court is affirmed. pellants findings to file of fact and conclu sions of law but did not. This “upon Under

overruled. T.R. 296 it is shall, the court” judge that “the at request party” of either make such conclusions; and under Point

8 we have held ap that the cross-action of

pellant Mary Aubey for divorce was tried jury. Appellants to a have cited decisions TROUSDALE held that the verdict of a in' custody suits for the of children was ad

visory. Thompson, See Duckworth v. Tex. TEXAS N.& O. R. CO. Com.App., (Hn. p. 735). S.W.2d 731 No. 12539. special submitted, And all of the issues ex cept questions Issue concern respecting Appeals Court of Civil of Texas. custody of the children involved San Antonio. However, require suit. T.R. does not Nov. 1953. split a trial court to a trial and make find ings on the issues as to which the verdict Rehearing Denied Feb. advisory; and since at least one of tried the issues below was jury,

tried to entire trial was to meaning within Fur of T.R. 296.

thermore, it clear us that the trial appellants procedure any has done Westerman, See Stahl v.

harm. Tex.Civ.

App., 250 S.W.2d 325. *2 deliberations,

jurors allegedly stated unavoid- negligence and immaterial able accident issues were *3 answered, and as damage the issue was consequence which two of changed their votes.' n prejudicial Appellee that no contends any event occurred, in misconduct but that appellee immaterial, it would be because was verdict. entitled to an instructed parties perti1 length- at detailed the have support nent adduced in evidence Fact.issues, their claim and defense. were raised, purpose clearly good and no would by restating served their extensive proofs. pres by This case is controlled the prejudicial ence or absence of misconduct. The trial court made findings and filed fact conclusions of law. Those find- ings prefaced by a “preliminary state- process ment” which detailed reasoning judge trial weighing in sifting Appellant, the evidence. in the trial court here, objected seriously process to the which included consideration of the method questioning, of counsel’s disapproval of the use aof trained investi- gator, and the prove failure to all matters stated affidavits attached to the' motion Appellant new for trial. urges that' these untenably are grounded and for that reason should not be considered. court, Since the trial found with existed reference to the Sohn, O’Connor, Robert B. San & Stahl misconduct, appellant above stated Antonio, appellant. for by harmed the trial court’s method in reach Matthews, Brewer, ing Nowlin & Macfar- Motley conclusion. As stated in Antonio, Baker, Botts, Mielsch, lane, Andrews .San Houston, appellee. opinions and other Parish, Supreme & Court: “Whether misconduct jury occurred, question is a proven of fact to be POPE, Justice. complaining party on the.hearing of below, appeals on for a Appellant, plaintiff the motion new but after the guilty established, was has been ground the' then it is Appellant damages court, sued for of law for the trial misconduct. on personal injuries appeal reviewing court, sustained arising as to whether accident, probably injury found resulted to complain railroad in a negligence party. Barrington Duncan, 'and ing him both on Hence, issues. The accident control- 169 S.W.2d 462.” unavoidable collateral .considerations'by urged this case is whether the trial ling ap harmed way, pellant resulted two in "no since they when prejudicial not ob trary and the effect to his negligence conviction had of misconduct finding struct * * * proven question which a law been of misconduct determine. independently second ballot he voted accordance Court must Zamora, Moore, S. And as regards conviction.” White Cabs v. that he during found stated de W.2d 200. liberations, thought voting neg that he and a work much manifests record ligence way only plaintiff would trial court careful consideration money. be awarded some The court then developed at the misconduct the evidence asked, found that Zamora was de However, the record is surfeited hearing. liberations, if that was the reason for *4 thoughts, be- inquiries jurors’ the with into voting, so Zamora, when so con intentions, motives, and wants. liefs, desires fronted, any did offer argument not or ex self-appraisals replete jurors’ with It is press any opinion support of his vote. of influence. and denials and affirmations From this the court concluded that Zamora court, which re- The of the “did not believe that the evidence showed harm, probable question of the law late to negligence,” notwithstanding his vote show may acts, which we overt a mixture of are ing there negligence. was operations consider, of mental properly and jurors, of of and states mind . trial court that the determined mis- may not we consider. conduct did not probable result in injury, but reached this through result an endeavor single juror made .The court found that a jurors’ isolate to the so-called honest and imma the answers were the that statement convictions, true both before and the answered; damage was issue terial after the misconduct occurred. The court concluded to two Stood ten vote the that the of that before the Page’s misconduct occurred negligence of defendant the favor and Zamora’s honest issues, convictions were with con- accident unavoidable Ju trary way they to the voting. for the holding Zamora After Page and rors divided, juror misconduct, so the the plaintiff; they while “the court found that that opinion, honestly. in accord expressed voted Gring the The court’s determination belief, jurors’ he did that ground- with honest his true convictions was ance any dif (1) would a it make ed on statement Page not think that that made dur- the ing deliberation, not that ference, think the that he to the effect that negli support the evidence did vote, have to found not would be his railroad silence, awarded Zamora’s (2) be plaintiff to when confronted with the gent only the that that the the court found reason for money.” his s “yes”, voting After give plaintiff discussed. was to not wa dam- statement foreman, ages. Page’s state statement made was not miscon- who Gring, changed duct, their a and serious hold-outs ment, arises whether the two contradictory pass judgment evidence court can on attitudes and On votes. 'Craw juror, the thoughts jurors a second remarks that concern of find that to refused Jurorsj The court statement. about issues. while deliberat- ford, a similar made Zamora “both Page ing, posi- take tentative contingent that further found tions, hypotheses, assume make evidence did not show concessions that believed purpose ‘yes’ argument, loud, of both voted on the for think out but negligence, illogically, merely they thought change posi- think because from one ballot first Jurors, another damages many in no other to award tion times. within they could province, even right the second ballot both their have the to be way, wrong. system their true convic Our'faith up- rests accordance ½ voted Page jurors confidence found also on our other will The court tion.” to, prevail. the better reason opinion make But his members “expressed permit testimony courts hear negligence had not been about a jury that the- of evidence,” Page, deliberations, made but that shown admission, “Yes”,, “con revealing voted itself the status despite that

4S3 156 A.L.R.. 171. S.W.2d to use thought, and changing thought or upon 'temptation 1028. The to encroach that a to show predicate it as cer- jurors has on thoughts evaluate the way aat a certain voted “ought” to have required a re-statement tain occasions would point in deliberations given rule, overruling precedents, and an affairs of intrusion into an Appeals, that even of the Commission of The effect tolerated. never been has yielded Traders & Gen- to the allurement. casts judge that a procedure is .a Lincecum, eral Insurance Co. v. at some vote for vicarious 220, 107 in the deliberations. finding that a Zamora’s statement applied general rule is When way plaintiff only negligence was specific inquiries, A find these we results: trial court recover, regarded by could juror’s disavowal of influence derived holding only motive Zamora’s finding proper inquiry. from misconduct is not a that such support the view Motley out. In Mielsch, rather than reason motive was 622; Sproles Lines, Freight Motor Inc. Zamora re reason, found that Long, *5 ’when confronted mained Lincecum, silent Traders & General v. Ins. Co. A juror. by another an accusation supra (expressly overruling decisions to who juror supervisory is not a thirteenth Hale, Republic the contrary); Ins. Co. v. another, compel to answer may juror one 616, 128 Tex. 909; 99 S.W.2d Sidran v. speak or juror should when a or determine Co., Western Textile Products Tex.Civ. making an admission risk of silent at the he 830, App., 258 (writ S.W.2d 832 granted). 141 Epperson, v. Akers interest. juror’s A admission that influenced he was 1028; 483, A.L.R. 189, Tex. S.W.2d equally improper evidence, is for the same Tex.Civ.App., Woodward, 127 S. Glazer v. Teasley, Tex.Civ.App., reasons. Swaim v. may themselves talk 938. W.2d 674; Phillips Jurors 249 S.W.2d v. Texas & Pa mental atti into or listen themselves Ry. Co., Tex.Civ.App., cific 223 S.W.2d juror’s a may determine courts tudes. If 258; Gulf, Ry. Colorado & Santa Fe Co. retort to by his to mental state failure Waterhouse, v. Tex.Civ.App., 223 S.W.2d deliberations, future reasons stated 654, 662; Lackey Moffett, Tex.Civ.App., v. jurors pass and other will find courts cases Wiemers, 715; 172 S.W.2d Chandler v. operations of upon mental ing Tex.Civ.App., contra, 569; 4 S.W.2d Perez collectively. Even misconduct singly or Underwriters, v. Consolidated Tex.Civ. Gring’s miscon excuse Zamora does not App., 162; Hampton 206 S.W.2d Co. v. of mis was guilty If Zamora duct. Joyce, 1066; Tex.Civ.App., Juror S.W .2d remedy is conduct, urged, which is not Wilson, Traction Co. Southern v. a dif not misconduct of new a Com.App., 254 juror’s S.W. 1104. A self- juror. part ferent kind .another serving statement the case was tried stating Gring’s according to the law and the evidence is immaterial, neither excused issues were subject inquiry.' Mielsch, anot Motley v. by proof that the misconduct purged 557, nor juror 145 Tex. 200 S.W.2d A 622. ill-found juror from an may another be converted not called to account logic for his logic. absence position Epper- a well-founded one. or the Akers ed to v. son, 189, 483, 486, 141 Tex. 171 S.W.2d v. Texas n & P. 1028; Bradley 156 A.L.R. 1905, Texas, the com relaxed Ry. Co., Tex.Com.App., 861; impeach S.W.2d prohibited all rule that mon-law Indemnity Co., Texas Ins. time, v. verdict, but, Maddox at the same ment of a 495, 499; Civ.App., 224 S.W.2d inquisitions Stockwell with reference the line drew Tex.Civ.App., Snyder, 51 S.W.2d 812. point where v. at the deliberations into understand the court’s charge A juror’s failure inquiry probes mind. inquiry. subject Bradley process v.T. & mental juror’s settled that rule is Kindle Ry., supra; Armstrong v. Pack Epperson, P. probed. Akers v. es Co., 471. ing Tex.Civ.App., 103 S.W.2d Who heard probably Sproles or heard it: purpose of a Freight Lines, honest and motives Motor Long, supra; Inc. v. mitigate misconduct. Stehling neither excuse nor v. Johnston, Tex.Civ.App., 32 S. Henderson, Tex.Civ.App., 137 696; Whelan W.2d v. 150, 152; Stehling Johnston, v. Carp Whether it was discussed: Ford v. Tex.Civ.App., 32 S.W.2d enter, 447, 558; 147 Tex. 216 S.W.2d epitomized in the Blaugrund Gish, These rules are Su v. 142 Tex.

preme “It is general 266; Court’s statement that 2d Epperson, Akers v. 141 Tex. permissible to either never allow 1028; Bradley 156 A.L.R. preserve destroy by testifying his verdict v. Ry. Co., Texas & P. Tex.Com.App., 1 processes he to the mental 861; Sproles Freight the same.” Motor reached Whether the discussion was brief or ex- Lines, 494, Long, 140 Tex. S.W. Inc. v. Moore, White tensive: Cabs supra; v. Hef- Mielsch, 644; Motley v. v. lin Ft. Worth & Ry. Co., supra; D. C. Republic Ins. Co. ‘ Hale, 99 S.W.2d 909. Whether the misconduct was : rebuked supra; Stehling v. matters should not be Such the Johnston, supra; subject inquiry hearings, in misconduct And, so, if whether promptly it was re- disregarded pur for all should be Sproles buked: Freight Lines, Motor Inc. poses when included in court’s find Long, supra; Carpenter, Ford supra; hand, ings. On the other misconduct hear inquire ings should into matters which those Whether the misconduct thereafter re- All *6 have been treated overt acts. con Sproles curred: Freight Lines, Motor Inc. act, may versation be an overt but it is not v. Long, supra; juror says may be in everything long How These have been quired into. treated as had been in delibera Birtcher, Texas Milk be overt tion: and are considered to acts which Products Co. v. 178, inquired Tex. may properly 633; 38 157 about: S.W.2d 1 subject Whether the The nature and matter of the misconduct occurred before or after the Triangle misconduct statement itself: Cab verdict was reached: Ford v. Carpenter, 568, supra; Taylor, 144 Tex. 192 S.W.2d Co. v. Lines, 143; Sproles Freight Motor Inc. v. point At what in the deliberations the 494, 642; Long, Tex. 168 S.W.2d misconduct 'Carpenter, occurred: Ford v. supra; opin it was stated as Whether fact or Barrington ion: v. Whether it occurred at a crucial or 462; Heflin v. Ft. Worth 169 S.W.2d & D. Blaugrund Gish, supra; issue: v. Stehling 114; Co., Tex.Civ.App., Ry. C. 207 S.W.2d Johnston, supra; v. Whether was casual or Whether there was an agreement (not large during loomed the deliberations: necessarily unanimous) to commit miscon Lines, Sproles Freight Long, Motor Inc. v. Carpenter, duct: Ford supra; v. Pruden supra; . Fire tial Ins. Co. v. Corpora United Gas the statement: Who made v. tion, 257, 199 145Tex. 767; S.W.2d Monkey ' (cid:127) Duncan, supra; Grip Walton, Rubber Co. v. Tex. 773; 53 S.W.2d repeated many others How it: White Moore, v. Cabs S.W. Whether the issues were discussed or 200; Heflin v. Ft. Worth & Ry. 2d D. C. singly voted on and in order groups: Co., supra; Lyons Cope, Tex.Civ.App., v. 217 S.W.2d many 116, 121; C., times it was How stated: Heflin Heflin v. v. Ft. Worth & D. Co., Ry. supra; Co., supra; Ry. & D. Ft. Worth C. base their the overt acts jury before which results on standing The numerical s present any con v. contain a trace Blaugrund misconduct: supra; operations, are: Gish, ideration of mental Johnston, supra; Stehling v. Carpenter, 147 216 S.W.2d Ford v. whole And consider the Huddleston, 558; City of Amarillo v. dire, testimony, case, ar including the voir 1088; Walker 152 S.W.2d v. 327, Texas. charge: gument Rule Quanah Co., Ry. Tex.Com.App., A. & P. Epper Procedure; Akers v. Rules of Civil 4; Gulf, Ry. 58 S.W.2d C. S. F. Co. v. & supra; son, v. Duncan, supra; Barrington Harvey, 895; Tex.Com.App., 276 S.W. Sid Co., supra. Ry. D. C. Heflin Ft. Worth & Co., ran v. Western Textile Products Tex. Civ.App., 258 830 (writ granted); au- After consideration a detailed Stores, Tex.Civ.App., Munoz v. Bollack summary states thorities, we believe this 275; Lloyds, 238 S.W.2d Biers v. Ft. Worth incompetent competent what is what Tex.Civ.App., 493, 496; 219 S.W.2d Heflin hearings, and is the evidence in Co, Ry. v Worth & Ft. C. Tex.Civ. D. . practice. correct rule of App., 114; Dwyer 207 S.W.2d v. Southern- Co., 961; Tex.Civ.App., 141 Pac. present in this case Mosley, Tex.Civ.App., Harkins v. stat group wherein falls within 706; Figula Ry. Ft. Worth & D. C. answers were immaterial. ed Co., 998; Tex.Civ.App., 131 S.W.2d All province law a statement invades Such . Co., Ry. corn v. Ft. Worth & R. C. Tex departure and' is a from Civ.App., 341; Stehling v. Despite the jurisdiction over facts. jury’s Johnston, Tex.Civ.App., 696; above, oft-quoted we general rules- stated Wiemers, Tex.Civ.App., Chandler S. opinions discussing harmony find no Orgain, Tex.Civ.App., W.2d Moore v. - cases; plac- but find courts category 291 S.W. 583. proper ing their sometimes on overt decision acts; at other times bases proof When we eliminate from beliefs, self-appraisals mo thoughts, except all that which .relates jurors; sometimes on tives both. acts, find to overt one we made Mul- Falling group within this latter are: issues, that answers to certain Co., linex Texas & O. R. Tex.Civ N. *7 others, Though by were immaterial. heard 457; & M v. P Sales Co. .App.,257 S.W.2d was not it discussed. After the statement Co., Tex.Civ.App., Mfg. Jewelry Kenmare made, jurors changed was two their votes. 515; Clary, Pope 235 v. Tex.Civ. S.W.2d permits 327 Rule a court to consider the 828; Pryor App., New St. 161 v. S.W.2d whole When we the case. consider fact Co., Anthony 146 Tex.Civ.App., Hotel S. jurors only that that heard not state Conner, 428; Warnack v. Tex.Civ. W.2d ment, proofs but heard 719; Pipe v. Texas App., 74 S.W.2d Carson attorneys to'the each argue listened side 328; Co., Tex.Civ.App., 59 S.W2d Line hours, doubt, urging, four no that the is Alexander, Tex.Civ.App., Taylor v. way, sues should be answered certain and Cook, 903; Tex.Civ.App., 11 v. Mann court, heard also that S.W.2d 572. question distinctly, consider each “must believed, independently-, cases, separately do it is state all from Those .upon they permitted issue,- bearing- evidence present law in .that opera only if that were the jurors’ as just mental sub consideration appear you”; it does not General Ins. Lince- mitted that the Traders & Co. v. tions. were probably controlled jurors and in cum, an 130 Tex. improper by the undiscussed in the and fluenced state confusion authorities alyzed proper rather than record and those overruled decisions expressly ment then men-, Carpenter, supra; v. Ford considerations of deliberations. had tolerated Huddleston, supra; . of Amarillo v. category, City in this operations. Cases tal Stores, Tex.Civ.App., rule, Bollack 238 strictly or Munoz adhered which have 275; Wiemers, finding There is another direct statement. S.W.2d Chandler v. 569; Orgain, that Crawford did not make such a state- Civ.App., S.W.2d Moore v. Tex.Civ.App., Sidran v. 291 S.W. 583. ment. Co., Products Tex.Civ. Western Textile findings stating We construe as

App., (writ granted), only persons named committed the cases, contrary holding, like to this are not ju- the other acts there was discussion of since such cases did rors not commit The court them. illus- other the misconduct statement or facts by trated the findings reason for such al- present which are not instant case. luding juror Allerkamp’s testimony explained. above To the trial illustrate Appellant urges that other miscon point further, juror Groce tes- occurred, duct found on tified that the engaged in an extensive contradictory it not oc evidence “* * * said, He thing discussion. by findings. cur. This is bound those Court all was amongst discussed around all 169 jurors, they say all had a in it.” But when Grip Rubber Monkey Co. v. testimony is read in context it shows Walton, Ap 53 S.W.2d 770. juror that the speaking jury’s about the pellant’s points other are overruled. consideration of the facts reference to whether the defendant railroad had been the trial court judgment affirm- is. negligent, rather than the state- mis'conduct ed. ment. Rehearing Motion for On testimony Some of the can not be opinion Appellant urges that our under- explained manner, in such a however. The wherein it states that states the facts Gomez, example, testified that the statement was not discussed. jury argued and discussed the misconduct Appellant copied testimony has from the matter thirty-five for about forty-five page hearing, record of hand, minutes. On the other which is claimed to show discussion of the it stated was mentioned once or twice. jurors. eleven Zamora, Page and jurors, the hold-out tes Appellant also calls 'our attention to the tified to extensive discussions with requested finding fact that he about dis- Crawford, yet the trial court found as a cussion, which the trial court refused to positive fact that Crawford did not make grounds make on the its the misconduct statement at all. Credibil complete. already full ity is determined the trial Price court. Biscoe, findings include the The court’s follow- 731; Sproles Motor Freight Lines *8 * * * plaintiff ing: “Yet attributes to Judge, Tex.Civ.App., 927. Allerkamp the statement that Gring and The misconduct in the case reduces it- Crawford, said, doesn’t ‘Well make no it self to an issue of whether there was discus- no, vote, if we we vote he difference how sion, and if so whether it was much anyhow,’ or lit- money get will and refers the tle discussion —whether the page (Statement of Court to N. T. Facts was- merely seriously or present. jurors it trial) for new where found Some for motion is stated discussion, that there was testify, so but on the one that the witness said he nothing, heard others they also that he didn’t think said page he said same heard varying amounts of mention or they Gring) and said that. (Crawford discussion *** here, of the them pointing statement. The Without best guide respect we have with apply same characteristics to these the occur- I find that jurors rence of offered misconduct is testimony of as found in the -the trial' to findings. plaintiff.” is a There direct witnesses 462, 465; make the misconduct 140 Gring did finding that Monkey 185, twenty-one experts. prove To Walton, medical var- Grip Rubber v.Co. board, phases negligence, ious of rotten 770. plaintiff causing which him claimed broke in this case— involved The statements fall, to introduced in Pic- evidence. special immaterial— issues are tures of all the railroad cars involved and as many decisions been treated have yards, plats of the to railroad drawn scale of of discussions in the nature showing everything within and about the of court. contrary law yards, profiles Southern Pacific and show- however, examination, Actually, close on ing grades and for the railroad elevations hybrid nature and in such statements are introduced, tracks in bearing classify. regarded If as discus- difficult to alleged fault of the defendant rail- misconduct; law, but it is sions road. The twenty-nine submitted is- partake of of the nature statements also sues, twenty-seven inquired of which about process- reasoning speculations illogical and attorneys fault. The argued the case for oper- which, mental jury, because es of day, full jury a and eighteen deliberated probed, ations not jury, answered, hours. The in each issue it Indemnity v. Texas Ins. at all. Maddox plaintiff found as to the defend- Co., Tex.Civ.App., 224 S.W.2d 495. ant’s fault. treat the statements as We mis With perspective, we do not consid- conduct, measuring so in doing in reasonably probable er it jurors, that the prejudice, we are concerned not swept aside as unimportant, immaterial and probabilities. possibilities but with To all the three of legal weeks combat over the probabilities, a misconduct trial measure presence or fault; absence of they proper placed setting in must be its a—as unnecessary purposeless counted as all greater trial. See fragment of Texas proofs of noñfault; fault and Hering, Light & Power Co. they considered court’s inquiry Smallwood v. Edmis counsel’s urgings with reference to the ton, Tex.Civ.App., 246 S.W.2d curiosity. fault as issues idle To conclude in is not a case We must bear mind that a wandering few minutes of by jury, injected new evidence was into the where pursuit opinion in lay speculation prob jury passing In deliberations. immaterial, that fault has the effect of regards the reason that abilities as vitiating pleadings, proofs, all the argu- did, charged we are voted ments, charge issues, effect, assumes*- duty with the considering nonoperative the existence of a system.. acts, proofs of overt but also the whole probabilities this case are The that the record. Rule 327. the force of the jury felt that the- prove plaintiff his case plaintiff failed de- pages read thirteen in proving its fendant succeeded defense. pleading jury, as eleven which duty by serted fault violations Appellant that we states should retax particularized grounds Twelve defendant. , costs, Appellant we shall sustain. negligence were stated. The defendant single point appealed on the mis- pages. plaintiff fault four denied conduct, and that reason fox omitted the- *9 took the witness stand and remained there twenty-one testimony of doctors from the days, relating for almost three full na Appellee of facts. statement demanded' Twenty-eight ture of the witness accident. in the this be included called, mostly defendant, were es ap- it was irrelevant to the facts. Since phases who testified the various of fault peal, costs are against taxed $429.50 absence, developed in a record its appellee, balance of the costs trial, comprising three weeks of more than appellant. are taxed pages. pages An additional 800 rehearing The motion for testimony used record medical overruled..