First Employees Ins. Co. v. Skinner

• Decision Date: 09 February 1983
• Docket Number: No. C-1555,C-1555
• Parties: FIRST EMPLOYEES INSURANCE COMPANY, Petitioner, v. Jessie E. SKINNER, Respondent.
• Court: Texas Supreme Court

Page 170

646 S.W.2d 170

FIRST EMPLOYEES INSURANCE COMPANY, Petitioner, v. Jessie E. SKINNER, Respondent.

No. C-1555.

Supreme Court of Texas.

Feb. 9, 1983.

Rehearing Denied March 16, 1983.

Touchstone, Bernays, Johnston, Beall & Smith, Sidney H. Davis, Jr. and Webber W. Beall, Dallas, for petitioner.

Harkness, Friedman, Kusin & Britt, Sherman A. Kusin, Texarkana, for respondent.

BARROW, Justice.

This is an appeal from a judgment rendered on the jury verdict awarding Jessie Skinner workers' compensation benefits for total and permanent incapacity. The court of appeals affirmed. 636 S.W.2d 258.

We granted First Employees Insurance Company's application for writ of error to consider the holding by the court of appeals that Rule 281, Tex.R.Civ.P., does not require a trial judge to send the admitted exhibits to the jury room during deliberation. We hold that Rule 281 requires that the exhibits be sent to the jury room and, therefore, the trial court erred in refusing to do so when requested by First Employees. We conclude, however, that the error was harmless under the record in this case and affirm the judgment of the court of appeals.

Rule 281 provides:

The jury may take with them in their retirement the charges and instructions, general or special, which were given and read to them, and any written evidence, except the depositions of witnesses, but shall not take with them any special charges which have been refused. Where part only of a paper has been read in evidence, the jury shall not take the same with them, unless the part so read to them is detached from that which was excluded.

This rule was adopted verbatim from Tex.Rev.Civ.Stat.Ann. art. 2193 (1925) and has remained in the same form since 1925. The rule is well settled that when a statute is re-enacted without material change, it is presumed that the legislature knew and adopted the interpretation placed on the original act and intended the new enactment to receive the same construction. See Coastal Industrial Water Authority v. Trinity Portland Cement Division, 563 S.W.2d 916, 918 (Tex.1978). Therefore, we find it significant that in a case decided shortly before this Court's adoption of Rule 281, we held the rule to be mandatory. See United Employers Casualty Co. v. Smith, 145 S.W.2d 249, 250 (Tex.Civ.App.--San Antonio 1940, writ ref'd). This mandatory construction has been consistently followed by all courts and commentators prior to the holding by the court of appeals in this case. See, e.g., Dallas Ry. & Terminal Co. v. Orr, 147 Tex. 383, 215 S.W.2d 862 (1948); Texas Employers Ins. Ass'n v. Applegate, 205 S.W.2d 412 (Tex.Civ.App.--Texarkana 1947, writ ref'd n.r.e.); Dallas Ry. & Terminal Co. v. Durkee, 193 S.W.2d 222 (Tex.Civ.App.--Dallas 1946, writ ref'd n.r.e.); 3 R. McDonald, Texas Civil Practice § 14.08.1 (rev. 1970); 2 R. Ray, Texas Law of Evidence § 1468 (Texas Practice 3d ed. 1980).

We conclude that Rule 281 is mandatory and that the trial court is required to send all exhibits admitted into evidence to the jury room during the deliberations of the jury. Furthermore, this rule is self-operative and requires no request from the jurors or counsel. We recognize that an exhibit may be so large and cumbersome that it would not be feasible to send such exhibit to the jury room. This problem, however, is not presented here.

The five exhibits admitted into evidence in this case were introduced by First Employees. Immediately after the jury retired to deliberate, the attorney for First Employees requested that the exhibits be sent to the jury room. This request was refused by the trial court with the qualification that if the jury requested any exhibits, the requested exhibits would be sent to the jury room. None were requested by the jury, and none were sent. The trial court erred in refusing to send the exhibits to the jury room as requested.

Under our practice, before a judgment shall be reversed and a new trial ordered on the ground that an error of law has been committed by the trial court in the course of the trial, "the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the petitioner as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, ...." Rule 503 and Rule 434, Tex.R.Civ.P.; Lorusso v. Members Mutual Ins. Co., 603 S.W.2d 818, 819 (Tex.1980); see Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex.1979); Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277 (1958); Calvert & Perin, Is the Castle Crumbling? Harmless Error Revisited, 20 S.Tex.L.J. 1 (1979). This is a judgment call entrusted to the sound discretion and good sense of the reviewing court from an evaluation of the whole case. Lorusso v. Members Mutual Ins. Co., supra at 821.

Skinner alleged that he sustained an accidental injury on or about July 16, 1980 while in the course and scope of his employment with Gifford-Hill & Co., Inc. First Employees denied any knowledge of the injury and alleged that Skinner had failed to give the required notice of the injury within thirty days. First Employees also denied that Skinner had sustained total or permanent incapacity. Thus, one of the disputed issues was whether Skinner had sustained an injury on the job. The other disputed issue was the extent of Skinner's incapacity.

Skinner worked for Gifford-Hill as the driver of a tractor-trailer hauling gravel and as the driver of a cement mixer truck from September 1979 to November 3, 1980. He testified that around the middle of July, although he was not...