Another v. Davis

• Decision Date: 01 January 1852
• Citation: 7 Tex. 556
• Parties: CLARK AND ANOTHER v. DAVIS.
• Court: Texas Supreme Court

7 Tex. 556

CLARK AND ANOTHER

v.DAVIS.

Supreme Court of Texas.

1852.

Where the evidence was conflicting and the question was purely one of fact, the Supreme Court will not disturb the verdict. (Note 78.)

The statute prescribes that the jury shall be sworn, once for all, for the trial of such civil cases as shall be submitted to them during the term. The presumption therefore is, in a civil case, that the jury were sworn, and it is not necessary that the record should show the fact.

It is not necessary for the names of the jurors in civil cases to be set out in the record of each case.

Appeal from Liberty. This suit was brought by the appellee to recover of the appellants the value of a slave alleged to have been hired to the defendants for a given period, and not returned by them. The defense was, that the slave had disappeared, being lost, stolen, or dead; by reason of which, and without any negligence or fault on the part of the defendants, they were unable to restore him to the plaintiff.

There was evidence tending to show that the slave had been drowned while in the service of the defendants. But in respect to the cause, whether in consequence of the want of proper care and diligence on the part of the defendants, the evidence was conflicting.

The record of the judgment stated that the parties appeared, &c., “and then came a jury of twelve good and lawful men of said county, to wit, B. Danzey, foreman, and eleven others, who, having heard the testimony, the argument of counsel, and being charged by the court, retired, and after consultation, brought in the following verdict,” &c.

There was a verdict for the plaintiff; a motion for a new trial, which the court overruled, and gave judgment for the plaintiff; and the defendants appealed.

The grounds of error relied on were--

1st. The refusal of a new trial.

2d. That it does not appear of record that the jury who tried the case were sworn.

3d. That the names of all the jurors are not set out in the record.

H. N. & M. M. Potter, for appellants.

I. The same strict rules do not apply to carriers and bailees of slaves as in cases for the loss of other property. (Boyce v. Anderson, 2 Pet. R., 150; Williams & Hitchcock v. Taylor, 4 Port. R., 234.)

Davis hired the negro to Clark and Kilgore, to do all kinds of work necessary to be done in connection with their mill business, and he knew the dangers and risks to which the negro was subject in such employment; and Clark and Kilgore took such care of the negro under the circumstances as they were required to do. (Williams & Hitchcock v. Taylor, above cited; Mims v. Mitchell, 1 Tex. R., 453.)

II. The jury were not sworn, and the error is apparent on the face of the record. (Crook & Adriance v. McGreal, 3 Tex. R., 487.) The finding of a jury not under oath cannot constitute a legal verdict upon which the court can proceed to give judgment. (Arthur v. The State, 3 Tex. R., 403; Hart. Dig., art. 1656; Beall v. Campbell, 1 How. Miss. R., 25; Wolfe & George v. Martin, Id., 30; Judah v. McNamee, 3 Blackf. R., 269; Nels v. The State, 2 Tex. R., 280.)

III. The record states, that “thereupon came A. B., foreman, and eleven others.” This does not show that there was a legal jury. The record should show this affirmatively. (Wolfe & George v. Martin, 1 How. Miss. R., 30.)

H. E. Perkins, for appellee.

I. It is sufficient answer to the first point made by the appellants that the jury found the preponderance of testimony to be in favor of the appellee.

II. It is considered that, the statute pointing out the method of impaneling petit juries, and they being retained to serve during the term, the presumption is in favor of the legality of a verdict, and that the jury that tried this cause were sworn. (Hart. Dig., art. 1656.)

It is considered to be no more necessary under our statute to show that the jurors that tried this case were sworn than it is that the court itself was legally organized; that the grand jury were sworn, or that the judge, sheriff, and clerk were in attendance; for the statute points out the way in which these things shall be done, and if the legality of the court's proceedings is presumed in the one case, why should it not be in the other?

In the case of Nels v. The State, (2 Tex. R., 280,) it is held that in criminal cases this error would be a fatal defect, and a civil case there referred to is intimated to be an extreme case.

In 1 Howard's Miss. Reps., p. 31, it is held to be “an acknowledged principle that nothing can be presumed for or against a record except what appears upon its face.” Our honorable court have held the very reverse of this principle, and say, “We are bound to indulge every presumption in favor of the judgment.” (3 Tex. R., 360.) Hence it will appear that the introduction of this doctrine would conflict with our own, and that the principles of their practice are dissimilar to ours.

Under our statute there is a manifest difference between civil and criminal cases, for in the one the statute contemplates but one swearing of the jury for the whole term. (Hart. Dig., art. 1656.) In the other it contemplates that the jury shall be sworn in each case.

II. In relation to this error, reference is made to 1 Tex. R., 638. It is there held to be a fair inference, if the record discloses twelve men to be on the jury, though all be not named, that such is the case, and such omission by the clerk, when the parties make no objection to the jury, will not be noticed in the appellate court.

WHEELER, J.

In the evidence embraced in the statement of facts we see no cause for disturbing the verdict. The question whether the loss of the negro was in consequence of the want of proper care and diligence on the part of the defendants appears to have been fairly submitted to the jury. The evidence on this point was conflicting. The question as presented was one of fact, and therefore properly and exclusively for the decision of the jury. The overruling...