Wells v. Lone Star S. S. Co.

LEVY, J. (after stating tbe facts as above). Tbe assignment of error is to the effect that tbe court erred in refusing tbe request to have tbe jury polled. In view of objections made by appellee to tbe consideration of thie bills of exception on which tbe assignment is based, the preliminary question arises of whether it can be said that tbe record evidences that tbe appellants made proper timely request to have tbe jury polled, and that such request was denied by the court. A bystander’s bill of exception appears in the record in due form, reciting to tbe effect that tbe appellants’ attorney made a timely request “that tbe jury be polled,” as stated in the ' body of tbe bill presented to tbe judge for approval and signing. This bill of exception was duly filed within the 90-day order of the court, and was not controverted, as authorized by the statute, by tbe appellee. Looking alone to that bill of exception, it would fully appear that tbe appellants’ attorney made timely request “to have the jury polled,” meaning as to their verdict on all tbe issues submitted. There also appears as a part of tbe record, and referred to by appellants, a bill of exception officially signed by tbe judge and filed by tbe clerk presenting tbe matter as, in the opinion of tbe trial court, it actually occurred. Tbe difference between tbe two bills is merely as to tbe form of tbe request made to tbe court. Tbe bystander’s bill recited that tbe request made was in the form, namely, “to have tbe jury polled” as to their verdict. Tbe court’s bill recites that tbe request made was in tbe form, namely, “to poll tbe jury on tbe three special issues 12,13, and 15.” Both agree that there was a refusal by tbe court to poll tbe jury upon tbe request as made. Tbe judge’s indorsement on the bill of exception presented to him was, in purpose and intention, a qualification and correction of tbe facts and tbe ruling made by tbe court as'stated in tbe body of tbe bill presented to him. That was tbe effect of tbe recitals therein. There was no refusal on tbe'part of tbe judge to give any bill of exception at all, and such effect may not reasonably be given to tbe bill signed and filed. Both of tbe bills of exception are regular, and either one of them may be regarded as evidencing the pro-eeeding upon which tbe assignment of error is based. We therefore, in determining tbe assignment of error, are inclined to regard tbe court’s bill of exception as correctly stating tbe facts and tbe ruling of tbe court relating to tbe proceeding, and do so regard it. Tbe court was in a better position to understand tbe phraseology of tbe request than were laymen, and there is every indication that tbe trial court acted fairly and in utmost good faith. Tbe statute provides that: - “Either party shall have the right to have the jury polled, which is done by calling separately the name of each juror and asking him if it is his verdict. If any juror answer in the negative, the jury shall be retired for further deliberation.”- Article 2206, R. S. Its object is to ascertain for a certainty that each of tbe jurors approves of the verdict as returned, and fully assents thereto. Unanimity of the verdict, freely assented to, is tbe principle involved. Such statute is treated as a matter of right to tbe party in suit, and not one resting wholly in tbe discretion of the trial court. Hancock v. Winans, 20 Tex. 320; Leverett v. St. Louis, S. F. & T. R. Co. (Tex. Civ. App.) 266 S. W. 589; State Life Ins. Co. v. Postal, 43 Ind. App. 144, 84 N. E. 156, 1093. And, being a statutory right in benefit of tbe parties, the denial thereof, upon timely request, becomes error, as conceded, requiring reversal of tbe judgment. That this article includes special issues as well as a general verdict is manifest, and is conceded by appellee. For tbe statute expressly provides for two classes of verdicts, namely, “a general verdict * * * whereby tbe jury pronounces generally in favor of one or more parties to tbe suit,” and “a special verdict * * * wherein the jury finds tbe facts only on issues made up and submitted to them under tbe direction of tbe court.” Article 2202, R. S. The pertinent question, then, arises of whether, because tbe motion requested to have tbe jury polled as to special issues on less than tbe whole verdict, such motion would be a wholly insufficient compliance with tbe statute. That depends upon the terms of tbe statute. Tbe “right” to tbe party, as conferred by tbe statute, is, without limitation or condition, “to have tbe jury polled.” Tbe inquiry of tbe jury is expressly restricted to “asking him if it is bis verdict.” And, as must be observed, it is not permissible to go further and question tbe jurors as to their “understanding of tbe questions and answers.” Hermann v. Schroeder (Tex. Civ. App.) 175 S. W. 788. Tbe term “bis verdict,” as applied to a series of special issues, means, in tbe more extended sense, tbe deliberate conclusion of each juror upon each fact in issue submitted for decision. And, of course, as applied to tbe authority of tbe court to enter final judgment, bis judgment *928 must be founded upon all tbe issues and in accordance there with. Sucb general words contemplate that the jury he polled upon the whole verdict. Ordinarily, such words would be so applied with propriety. But the mode of polling as to special issues is not undertaken to be pointed out in the article, namely, of whether the jury be polled en masse as to the answers, or whether each finding separately, or a specific answer only, be inquired about. .There are no negative words forbidding the following of any one of the modes mentioned. It is believed, therefore, that the right “to have the jury polled” may not be legally refused upon timely motion to poll merely because of the form of the request. The motion should be regarded as in substantial compliance with the statute of request “to have the jury polled,” and the right should not be denied merely for form, the statute providing no special form of request for polling. The form of request of the parties would not be a limitation upon the court’s authority. The judgment is reversed and the cause remanded.