Chapin v. Putnam Supply Co. (124 Tex. 247, 1935)

Mr. Judge SHARP

delivered the opinion for the Commission of Appeals, Section A.

This appeal involves the construction of Article 2193 of the Revised Civil Statutes of 1925, which, in part, reads as follows:

“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.”

A writ of error was granted on account of the conflict of opinions by the Courts of Civil Appeals in construing the foregoing article. In the case of Washington Fidelity National Insurance Co. v. Williams et al., 33 S. W. (2d) 796, the Court of Civil Appeals held that it was not reversible error for the jury to have the pleadings during the deliberations of the case, unless injury is shown. In the instant case, 45 S. W. (2d) 283, the Court of Civil Appeals at Eastland held to the contrary. Chief Justice Hickman, in rendering the opinion, in part, said:

“After the jury retired to consider its verdict, it sent a request to the presiding judge that it be furnished with all of the pleadings which had been used on the trial of the cause. This request was complied with, and all of the active pleadings were delivered by the trial judge to the sheriff, who in turn delivered same to the jury. In the respective motions of appellants for a new trial, the action of the trial judge in this respect was assigned as error. Evidence was introduced upon the hearing. The evidence consisted of the testimony of three of the jurors and the respective attorneys. This evidence had to do with the question of whether injury resulted from this action of the trial court, and the further question of whether appellants waived the whole matter by failure to object to the court’s action in furnishing the pleadings to the jury. * * *

“Prior to the revision of 1925, this article provided: ‘The jury may take with them in their retirement the charges and instructions in the cause, the pleadings and any written evidence, except the depositions of witnesses. * * *’

“It thus appears that there is now no statutory authority for delivering the pleadings to the jury for its consideration in arriving at a verdict. The final title of R. S., 1925, sec. 2, provides: ‘That all civil statutes of a general nature, in force when the Revised Statutes take effect, and which are not included herein, or which are not hereby expressly continued in force, are hereby repealed.’

“The application of that section to the above quoted article makes it conclusive that the Legislature intended to repeal that provision of the article giving authority to the trial judge to furnish the jury with the pleadings. Aside from this provision of the final title, under a well-settled rule of statutory construction, the annulment by the Legislature of the provision with regard to pleadings clearly evidenced a legislative intent to change the law. American Indemnity Co. v. City of Austin, 112 Texas, 239, 246 S. W., 1019; Bryan v. Sundberg, 5 Texas, 418; Stirman v. State, 21 Texas, 734; Turnstall v. Wormley, 54 Texas, 476; State of Texas v. Travis County, 85 Texas, 437, 21 S. W., 1029; Schley v. Hale, 1 White & W. Civ. Cas. Ct. App., secs. 930, 933.

“We therefore conclude that under our present statute it is error for the trial court to permit the jury to take the pleadings with them in their retirement.

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