"We are of opinion, however, that this error of the trial court does not require nor authorize a reversal of the judgment, because the undisputed evidence adduced upon the trial would have required a verdict in favor of the appellees, and if a jury had been impaneled to try the case it should have been instructed to find for the defendants. Such being the state of the evidence, no injury resulted to appellant from the refusal of the court to comply with its demand for a jury, and the error in refusing such demand was harmless. *Page 491

The Court of Civil Appeals properly held that the trial court committed error in denying to plaintiffs in error a trial by jury upon their proper demand. The point is sufficiently discussed in the opinion of Chief Justice Pleasants. Having held thus, the Court of Civil Appeals refused to reverse the judgment of the trial judge rendered upon a hearing without a jury, because it was thought no injury was done, inasmuch as the court would have been justified upon the evidence in instructing a verdict against the plaintiffs in error if a jury had been allowed. We think this is not a sufficient answer to the complaint. There were questions of fact in the case upon which plaintiffs in error were entitled by both the Constitution and the statute to have a jury pass. The trial court in order to render the judgment had to find facts which it was the right of the plaintiffs in error to have only a jury find; and such findings can not support a judgment thus erroneously rendered. The following authorities are in point: American Mtg. Co. v. Hutchinson, 19 Ore., 334; In re Robinson,106 Cal. 493; Hinchly v. Machine, 15 N.J. Law, 476; Swasey v. Adair, 88 Cal. 179; Chasteen v. Martin, 81 N.C. 51.

Whether or not the trial court might properly have instructed a verdict had the case been tried before a jury with evidence the same as that adduced before him, may admit of grave doubt; but however that may be, it can not be assumed for the purpose of avoiding the effect of the denial of the right to a jury that, had it been allowed, the evidence would have been the same in all respects as that before the judge. We think it clear that if such an error can ever be cured by such a reason, it would only be when it is clear beyond peradventure that there were no facts to be found from evidence.

Reversed and remanded.