Parker v. Bailey

• Decision Date: 10 April 1929
• Docket Number: (No. 1044-5240.)
• Citation: 15 S.W.2d 1033
• Parties: PARKER et al. v. BAILEY et al.
• Court: Texas Supreme Court

15 S.W.2d 1033

PARKER et al. v. BAILEY et al.

(No. 1044-5240.)

Commission of Appeals of Texas, Section B.

April 10, 1929.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Trespass to try title by M. T. Bailey and others against Floyd Parker and others. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (17 S.W.(2d) —) and defendants bring error. Reversed and remanded.

Lloyd A. Wicks, of Ralls, for plaintiffs in error.

Douglas & Scott, of Lubbock, for defendants in error.

SPEER, J.

The case was presented to the Court of Civil Appeals upon an agreed statement and is tersely stated by the Court of Civil Appeals as follows:

"The appellees sued appellants in trespass to try title in the district court of Crosby county, Tex., to recover Lots 17 and 18 in block 115, in the town of Ralls, in Crosby county, Texas. Appellants answered by general denial, not guilty, and pleaded a written contract with appellees for the exchange of other real estate for the land involved in this suit, alleged compliance with the contract, and asked that specific performance thereof be decreed.

"The appellees replied that the contract was never delivered; that the land in controversy constituted their homestead; and denied the execution of the contract. The court, in his main charge, submitted 16 special issues, 15 of which were answered by the jury in favor of appellees. At the request of the appellees, the court submitted three additional issues, one of which only was answered. On the findings of the jury to the 16 special issues answered, the court rendered judgment for appellees.

"It is conceded in the agreed statement that the findings of the jury on the issues answered were warranted by the testimony, and that such findings were sufficient to authorize the judgment rendered by the court.

"In an amended motion for a new trial, the appellants asked that the verdict of the jury be set aside, because J. H. Abel, the foreman of the jury, left the other 11 jurors in the jury room and reported to the court that the jury were unable to agree on a verdict, and that the court informed the foreman of the jury that it was desirable that a verdict be reached, if possible, and directed the foreman to retire to the jury room for further deliberation. After hearing testimony on the amended motion, it was overruled by the court, and the only question before us for consideration is whether or not the communication between the court and the foreman during the deliberation of the jury constitutes reversible error."

The Court of Civil Appeals held the matter to be harmless, and affirmed the judgment of the trial court. If the question were an open one we might be inclined to the view expressed by Justice Jackson for the Court of Civil Appeals. The logic of it appeals to one. But we think the case is ruled by the decision in Texas, etc., Co. v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137, cited by the Court of Civil Appeals.

As to misconduct of the jury generally, the rule undoubtedly is well established that where misconduct is shown of such a nature as reasonably calculated to be prejudicial to the rights of a complainant, the same will work a reversal of the judgment unless it affirmatively appears that no injury resulted. Houston, etc., Co. v. Gray, 105 Tex. 42, 143 S. W. 606; Hines v. Parry (Tex. Com. App.) 238 S. W. 886; Payne v. Harris (Tex. Com. App.) 241 S. W. 1008; Southern Traction Co. v. Wilson (Tex. Com. App.) 254 S. W. 1104; Gulf, etc., Co. v. Harvey (Tex. Com. App.) 276 S. W. 895; Moore v. Ivey (Tex. Com. App.) 277 S. W. 106; San Antonio, etc., Co. v. Alexander (Tex. Com. App.) 280 S. W. 753; Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765. This is the correct interpretation of article 2234 of the statute.

But the matter of misconduct in cases like these is not identical with that complained of in this case. Here the act — of the judge — is one of legislative cognizance and is specially forbidden as an interference with the right to a jury trial. Article 2197 of the Revised Civil Statutes, regulating jury trials, provides: "The jury may communicate with the court by making their wish known to the officer in charge, who shall inform the court, and they may then in open court, and through their foreman, communicate with the court, either verbally or in writing." Article 2198 requires that where the jury desires further instructions of the court touching any matter of law, they shall appear before the judge in open court in a body and through their foreman state to the court the particular question of law upon which they desire further instruction, and that no instruction shall be given except in the manner there prescribed. It is thus seen that the statutes very carefully provide the manner in which the jury shall confer with the court touching the case. It may be that a proper interpretation of the statute would make it apply in its strictness only...