England v. Pitts , 56 S.W.2d 493 ( 1932 )

When the case was decided, I had an impression that the court was in error in reversing and remanding the cause; the doubt then expressed is now a conviction that the holding of the majority, on the last question discussed in the opinion by Chief Justice JONES, is error.

The origin of the question is fully stated in the majority opinion; in short, it is this: One of the material issues involved was whether or not appellant owned the truck and had in his employ Mr. Arnold, who was its driver at the time of the collision with and injury to appellee. On this issue appellant testified by deposition that he owned the truck and that Arnold (the driver) was employed by him at the time. This testimony was introduced in evidence by appellee; however, appellant, testifying in his own behalf at the trial, said in effect, that he did not own the truck, and that Arnold was not in his service at the time in question, thus producing a sharp conflict between his deposition testimony and that given at the trial.

During their deliberations, the jury made an oral request, communicated to the court by the bailiff, that appellant's deposition be sent to the jury room; this request was complied with. The majority states the question presented thus: "Does the fact that the deposition of appellant was sent to the jury room, at the request of the jury, constitute reversible error?"

I think the provisions of both articles 2193 and 2199 are more or less involved, and that the action of the court in sending the deposition to the jury room, under the circumstances, was in disregard of provisions of both statutes. Article 2199 provides the procedure, where a disagreement arises as to evidence; it reads: "If the jury disagree as to the statement of any witness, they may, upon applying to the court, have such witness again brought upon the stand; and the judge shall direct him to repeat his testimony to the point in dispute, and no other, and as nearly as he can in the language used on the trial; and on their notifying the court that they disagree as to any portion of a deposition or other paper not carried with them in their retirement, the court may, in like manner, permit such portion of said deposition or paper to be again read to the jury."

The evident purpose, in authorizing the reproduction of testimony, is to aid the memory of jurors and compose disagreements that may arise as to either oral or deposition testimony. It is obvious that a disagreement arose in regard to the deposition testimony of appellant, else the request communicated to the court through the bailiff would not have been made. The statute contemplates that, when this occurs, on proper request, the court may in open court permit such portion of the deposition involved in the disagreement to be again read to the jury; however, this procedure was not pursued in the instant case; instead, the deposition was sent to the jury room.

However, as the result of these irregular proceedings, the jury simply received and considered the previously read deposition testimony of appellant, the re-reading of which they had the legal right to request; in fact, it was their duty to request in the event of a disagreement, such as evidently existed at the time the request was made. It nowhere appears that any new, extraneous, or prejudicial fact reached the jury in connection with the deposition, and nothing to justify a presumption, other than that the jury simply re-read appellant's deposition testimony. Thus the question, denuded of every confusing fact or circumstance, is presented, whether these irregular proceedings, in the absence of a showing or suggestion of resultant injury, required reversal. I do not think so.

It has been repeatedly held that similar procedural errors were harmless. In Franklin v. I. G. N. Ry. Co. (Tex.Civ.App.)174 S.W. 333, the Austin court held that any error in permitting the jury to have a written statement made by a witness and her daughter, to a claim agent, as to what they saw when the injury under investigation was received, the witness on cross-examination having admitted its correctness, was harmless. In Gonzales v. Flores (Tex.Civ.App.)200 S.W. 851, 853, the jury took out two original memoranda in Spanish, not in evidence, but from which plaintiff testified. The record failed to show that the jury understood the Spanish language, or considered the memoranda; the court held that harmful error was not shown. In Dunman v. South Texas Lbr. Co. (Tex.Civ.App.) 252 S.W. 274, 276, the jury were permitted to take out the verified account sued upon, after having been denied under oath by defendant. The Austin court said that this was error, but, in the absence of a showing of injury, did not justify reversal. Washington, etc., Co. v. Williams (Tex.Civ.App.) 33 S.W.2d 796, was an action on an accident policy. The Fort Worth court held that, no injury being shown, it was not reversible error to submit to the jury the pleadings of the parties. Writ was granted, and the case was reversed, but on other grounds. See (Tex.Com.App.) 49 S.W.2d 1093. In St. L., B. M. Ry. Co. v. Lane (Tex.Civ.App.) 248 S.W. 59, 62, on request of the jury, the testimony of a witness on a certain point was read to them by the court reporter in the presence of the court and the parties; held not prejudicial. To the same effect, see, American Nat'l Bank v. Haggerton (Tex.Civ.App.) 250 S.W. 279.

In the absence of a showing or suggestion of injury, or of any fact or circumstance upon which a reasonable doubt as to injury could be predicated, I do not think the bare disregard of the statutes in question presents harmful error, therefore am of opinion that appellee's motion for rehearing should have been granted, the former judgment of this court set aside, and the judgment below affirmed.