Denbow v. Standard Acc. Ins. Co. , 143 Tex. 455 ( 1945 )

I disagree with that part of the majority opinion which holds that a violation of Rule 295, which requires the trial court in the event of conflict in the jury's findings to call the jury's attention thereto in writing and send them back for further deliberation, is not reversible error because of the provisions of Rule 434.

Article 2207 of the Revised Statutes of 1925 was the original basis for Rule 295. That Article reads as follows:

"Art. 2207. Defective verdict. — If the verdict is informal or defective, the court may direct it to be reformed at the bar. If not responsive to the issue submitted, the court shall call their attention thereto and send them back for further deliberation."

Articles 2185-7 and 2193, Vernon's Annotated Civil Statutes, prescribe the statutory rules relating to the preparation of instructions by the trial court to juries. These articles of the statutes were repealed by the Acts of 1939, 46th Legislature, page 201, which authorized the Supreme Court of this State to make rules covering the practice and procedure in civil actions in lieu of the articles of the statutes repealed. Acting under this law, the Supreme Court enacted Rule 272 as a substitute for Article 2185, Rule 273 as a substitute for Article 2186, and Rule 275 as a substitute for Article 2187. That part of Article 2185 pertinent to the question here involved reads as follows:

"The charge shall be in writing, signed by the judge, filed with the clerk, and shall be a part of the record of the cause."

Rule 272 uses the exact language contained in Article 2185. Rule 295 was originally promulgated by this Court in the exact language contained in Article 2207. It was afterwards amended to read as follows:

"Rule 295. Defective verdict. — If the verdict is informal or defective, the court may direct it to be reformed at the bar. If it is not responsive to the issue submitted, or contains conflicting, findings, the court shall call the jury's attention thereto in writing__ and send them back for further deliberation." (Emphasis mine.)

Rule 434 in part reads:

"Provided, first, that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, * * *."

That part of Rule 434 just quoted is a re-enactment of a substanial part of old Rule 62a, which was adopted in 1912. Prior to the promulgation of Rule 62a it was established that any error of law committed in the trial of a cause was presumed to be ground for reversal, unless it could be said from a consideration of the entire record that injury to the complaining party did not result. 3 Tex. Jur., p. 1250, sec. 875.

This Court adopted Rule 62a to prevent the reversal of judgments for technical and unsubstantial errors. It serves a useful purpose, and many judgments have been affirmed by reason of such rule. It will be noted that that part of Rule 434 involved here is not based upon any article of the statutes. This Court in the case of Golden v. Odiorne, 112 Tex. 544,249 S.W. 882, in construing Rule 62a, said: "We find nothing in the language of the rule which even intimates that the statutes governing practice and procedure were intended to any degree to be abrogated." With this construction of the rule by the courts over a long period of time, this Court readopted the principle of Rule 434. There is nothing in the language of the new rule which shows that this Court intended in its adoption of Rule 434 to give it any different construction than had been given to Rule 62a. It should be kept in mind that Rules 272 and 295 are substitutes for articles of the statutes, and they are not controlled by Rule 434. Besides, Rule 295 was also amended so as to leave no room for doubt as to its meaning.

No fixed rule has been defined for the application of Rule 434, but it is generally applied in cases involving (1) misjoinder of causes of action or of parties, (2) erroneous admission or exclusion of evidence, (3) improper remarks of counsel, and (4) refusal to submit certain special issues. See 3 Tex. Jur., secs. 879, 880; 882, 883, and 885. See also 6 Texas Law Review, p. 218, and 13 Texas Law Review, p. 338

It is undisputed that the trial court did not comply with the provisions of Rule 295, which require that if the verdict of the jury is not responsive to the issues submitted or contains conflicting evidence "the court shall call the jury's attention thereto in writing and send them back for further deliberation." The language used in Rule 295 as amended is in complete harmony with Rule 272, which requires that the charge shall be in writing; and that mandate is carried into Rule 295.

The 1939 Act, under which this Court was authorized to make such rules, relinquished to the Supreme Court of Texas the full rule-making power in civil judicial proceedings, and provided that all laws and parts of laws governing the practice and procedure in civil actions were repealed, and such rules made by the Supreme Court carry the same force as if they were enacted by the Legislature.

The policy of the law has always demanded that certain fundamental rules relating to procedure in the trial of cases in civil actions shall be strictly observed.

The unbroken policy of the law is that litigants are entitled to certain rights in the trial of civil cases, and when those rights have been denied, they are entitled to a new trial. Some of the positive fundamental rights guaranteed to litigants, expressed in the rules, are as follows: (1) That the trial judge is not permitted to enter the jury room and communicate with the jury; (2) that attorneys and litigants are not permitted under any circumstances to treat the jurors by buying them drinks; and (3) that the charge of the court must be in writing. Judge Speer, speaking for this Court in the case of American Produce Co. v. Gonzales, 1 S.W.2d 602, in discussing the rights of litigants in the trial court, said:

"Every litigant has the right to have his case tried in substantial compliance with the established rules of law, in so far as they affect his substantial rights, for the denial of which he will be entitled to a reversal without the necessity of showing affirmatively that such error was harmful. The rule is well established that error in a material respect calculated to injure the losing party will be cause for reversal unless it reasonably appears that such result did not follow. M.K. T. Ry. Co. v. Hannig, 91 Tex. 347, 43 S.W. 508; Houston, etc., Co. v. Gray, 105, Tex. 42, 143 S.W. 606; Hines v. Parry (Tex. Com. App.), 238 S.W. 886; Southern Traction Company v. Wilson (Tex. Com. App.), 254 S.W. 1104; Gulf, etc., Co. v. Harvey (Tex. Com. App.), 276 S.W. 895; San Antonio, etc., Co. v. Alexander (Tex. Com. App.), 280 S.W. 753; Bell v. Blackwell (Tex. Com. App.),283 S.W. 765."

The recent case of Freeman v. Hillman, 173 S.W.2d 657, involved the action of the trial judge in entering the jury room to communicate with the jury. Judge Folley, speaking for the Court of Civil Appeals, reviewed the many decisions on this question, and stated the decision of that court in the following language:

"We think the bill of exceptions presents reversible error, and this is true regardless of whether any actual harm resulted from the conduct of the trial judge. Our rules very carefully outline the conditions under which a jury shall deliberate and the manner in which they may communicate with the court, and the court with them. Rules 282, 283, 284, 285, and 286, Texas Rules of Civil Procedure; Texas Midland R. Co. v. Byrd, 102 Tex. 263,115 S.W. 1163, 20 Ann. Cas. 137. It is immaterial whether the trial judge communicated with the jury. He entered the jury room and permitted the jury to communicate with him under conditions forbidden by the rules. Corn v. Crosby County Cattle Co., Tex. Com. App., 25 S.W.2d 290. It is also settled that when the rules are thus violated, a reversal must follow regardless of the question of injury. City of Waco v. Craven, Tex. Civ. App.,54 S.W.2d 883, and authorities cited."

The case of Texas Milk Products Co. v. Birtcher, 138 Tex. 178,157 S.W.2d 633, involved the question of the plaintiff's (Birtcher) buying a five cent drink for one of the jurors. The trial court and Court of Civil Appeals held that the action of Birtcher did not constitute reversible error. It was there contended, as here, that it was a common practice, and was such a trivial affair that the verdict of the jury should not be set aside on that account. This contention was rejected by this Court, and Chief Justice Alexander, speaking for this Court, reversed the judgments of the trial court and Court of Civil Appeals, and tersely stated the rule as follows:

"That the conduct of the plaintiff Birtcher and the juror Braley was improper is established by an unbroken line of decisions in this State."

The history of Rule 295 clearly shows that it was intended by its recent amendment by this Court to make such rule harmonize with Rule 272, and to compel all charges to the jury to be in writing. If this was not the purpose of the amendment, the change made in the rule was unnecessary and useless. We have the rule stating in plain language that the charge of the court "shall be in writing." The charge "shall be signed by the judge, filed with the clerk, and shall be a part of the record of the cause." The jury has the instructions in writing for their consideration in the jury room, and it leaves no room for dispute as to what instructions the trial judge gave to the jury. The courts have many times passed upon this precise question. The case of Reed v. State, 32 S.W. 216, involved the right of the trial judge to give the jury an additional oral charge, and Chief Justice Hightower, speaking for the court, said:

"This oral charge, in so far as it constituted an instruction to the jury upon the law of this particular case, was reversible error, for, under article 2184, R.S. 1925, the law of the case must be submitted to the jury by a written charge unless `expressly waived by the parties.' Under the decisions, the provisions of article 2184 are mandatory. Sherman v. Newsome Johnston, 46 Tex. Civ. App. 111, 101 S.W. 1020; International G.N. Railway Co. v. Parke (Tex. Civ. App.), 169 S.W. 397; Wallace v. Shapard, 42 Tex. Civ. App. 594, 94 S.W. 151. This error alone would reverse the judgment of the lower court."

The case of Consolidated Underwriters v. Ruff,164 S.W.2d 550, involved the right of the trial judge to instruct the jury orally to return to the jury room and reconcile their conflicting answers to Special Issues No. 8 and No. 13. Complaint was made of this action of the trial judge. Appellee contended that Rule 295 was not mandatory but directory, and that such action in the light of Rule 434 was not reversible error. Chief Justice Walker in writing the opinion in that case said:

"This point must be sustained. Rule 295, Texas Rules of Civil Procedure, provides: `If the verdict is informal or defective, the court may direct it to be reformed at the bar. If it is not responsive to the issue submitted, or contains conflicting findings, the court shall call the jury's attention thereto in writing and send them back for further deliberation.' The oral charge to the jury was in violation of the provisions of Rule 295. In giving additional charges to the jury, this rule must be complied with, since it has the force and effect of a statute. Reed v. Bates, Tex. Civ. App., 32 S.W.2d 216. Where the statute regulating the giving of charges to the jury is violated, error must be presumed. Texas, etc. Co. v. Byrd, 102 Tex. 263,115 S.W. 1163, 20 L.R.A., N.S., 429, 20 Ann. Cas. 137; Parker v. Bailey, Tex. Com. App., 15 S.W.2d 1063.

* * * * * * *

"This Rule has its source in Article 2207, Vernon's Ann. Civ. St., but there was added to this article the affirmative direction that the court must call the jury's attention in writing to the conflicts in its verdict."

This Court placed its approval upon that opinion by refusing a writ of error.

The case of Parker et al v. Bailey et al, 15 S.W.2d 1033 (Tex. Com. App.), involved the construction of Article 2197 and 2198, regulating jury trials, and Judge Speer, writing the opinion in that case, used the following language:

"The sacredness of the right to a jury trial and the delicacy of any fact inquiry as to the probable effect of the trial court's misconduct, before the very judge against whom the complaint is made, renders the matter of such public concern as to be well within the legislative right to speak arbitrarily. As indicated in the case of Texas, etc. Co. v. Byrd, supra, it is a matter of such public concern that the courts will not permit an inquiry into the probable effect of a violation of the statute. When the fact is established it is conclusively presumed, by reason of the statute itself, that a fair trial has not been had and evidence should not be heard to the contrary."

The plain violation of other rules like those enumerated above, and which affects the rights of litigants, was not intended to be shielded by Rule 434; nor has this Court heretofore applied such rule to a case like the one before us. The majority opinion holds that a trial judge may orally instruct the jury to return to the jury room and reconcile their findings to two special issues. It logically follows, then, that another trial judge in some case would be authorized to instruct a jury orally to return to the jury room and reconcile their findings on some half a dozen special issues. There will be no end to the mis-chief done, and the plain provisions of the rules mentioned above have been written in vain. By requiring the judges to observe the plain mandate of the rules that such instructions to the jury shall be in writing, the work of the courts would have been expedited and the rights of litigants would have been more carefully guarded. This requirement would not have placed any onerous burden on the trial judges, and it would have served to remove all doubt as to what instructions a trial judge gave to the jury. If Rule 434 is to be given application to a case of this kind, then why is it not applicable to every case where the observance of the rule is mandatory? If Rule 434 is to prevail as construed by the majority opinion, then the other rules fixing in plain language the duties required of litigants, attorneys, and trial judges in the trial of cases will be compelled to yield to the provisions of Rule 434. The holding of the majority opinion reverses the holding of the courts in many cases involving the application of this rule. This was not intended by the adoption of Rule 434.

Opinion delivered March 14, 1945.