dissenting.
I respectfully dissent. The majority treats this very grave, serious, and forbidden misconduct of this bailiff as insignificant and of no consequence. I view it as a most flagrant violation of due process. The trial court should have granted the motion for new trial. Prompt recognition of the obvious harm emanating from a sequence of events such as occurred probably accounts for the scarcity of authoritative cases. I find it somewhat perplexing that this case has worked its way up the judicial ladder to this point, and somewhat astonishing that the majority can casually determine no harm occurred since what the bailiff said was “most likely, what the trial court would have told the jury had the proper procedures been utilized.” I do not enjoy the benefit of such clairvoyance. There is absolutely nothing in this record to support that statement. Readers can only speculate as to its source and reliability.
The majority draws a distinction between the facts of this case and those in Logan v. Grady, 482 S.W.2d 313 (Tex.Civ.App—Ft. Worth 1972, no writ). Because the facts of two cases are not identical is not a proper basis to draw a distinction where the underlying legal principle is virtually identical in both cases, such as we have here. Reading beyond the syllabus and head notes of Logan reveals there were two interrelated errors analyzed by the court, and both errors supported reversing the trial court and remanding for new trial.
Logan involved a head-on automobile accident. Contributory negligence of the plaintiff was the keystone of the defense. The Logan court first addressed the fact that the trial court admitted a written statement from a non-party witness who also testified at trial. After extensive analysis, the Logan court held the admission of the statement harmful, reversible error because the statement contained many inadmissible conclusions. During deliberation, a juror noted some differences between the written statement exhibit and the oral testimony of the witness. The jury requested they be allowed to hear the oral testimony again. The bailiff failed to communicate this request to the court. The Logan court noted that this failure caused the jury to have before it inadmissible evidence bearing on the issue of contributory negligence. Id. at 320. The bailiff instructed the jury that its members already had all it needed. The Logan court held this transaction prejudicial and reversible error, also. Id. at 322.
The majority misinterprets the holding of the Logan court. They suggest the decision turned on the jury being deprived of testimony of a key witness. I read the case to say the jury was given inadmissible evidence which was overemphasized by a trial error of the bailiff that had a direct bearing on a pivotal issue before the jury. Thus, prejudice arose.
I turn now to our case. The majority takes the cavalier position that the jury *310was deprived of nothing. I suggest that the jury was deprived of everything. The jury was denied contact with the judge. The jury was isolated and denied the right of direct communication with the judge. The jury was denied the right of freedom from outside influence. The jury was denied the right of freedom from unauthorized communication. The jury was denied the opportunity to make an informed decision on all issues.
The issue of mitigation of damages was a hotly contested question of fact at trial. This was a key issue of appellant’s defense. The very nature of the question the jury addressed to the court suggested they had already found against appellant on the contract dispute, and were considering damages. The jury note specifically set out that there was a disagreement among them. Although the note indicated this, the bailiff then polled the jury by asking if they knew the meaning of the term. After some said they did, the bailiff then instructed the jury to go with the common use of the words, and not make it harder than it had to be. The obvious result is that the bailiff’s instructions made some jurors unauthorized “secret witnesses” to the other jurors on the proper meaning of the terms. See Central Power & Light Co. v. Freeman, 431 S.W.2d 897, 898 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n.r.e.). Once a jury requests information, it becomes the duty of the court to respond. Taylor v. Lewis, 553 S.W.2d 153, 159 (Tex.Civ.App.—Amarillo 1977, writ ref’d n.r.e.) (on rehearing). The jury was deprived of its right to hear the court’s response.
The undisputed evidence at the motion for new trial established conclusively that the jury bailiff violated rules 283 and 285 of the Texas Rules of Civil Procedure. The trial court found such violation to be error, and that it was a material error. This is uncontroverted. Our standard of review to determine harm requires that we not only review the evidence presented at the motion for new trial, but also the entire record as a whole. Texas Power & Light Co. v. Hering, 148 Tex. 350, 353, 224 S.W.2d 191, 192 (1949).
A review of the testimony at trial reveals that T.J. Strange, UPG’s manager of supply and marketing, testified that he knew of Basin’s financial problems at least in April 1981, maybe as early as March 1981. When he discovered that collecting from Basin would probably be difficult he recommended that UPG immediately collect what was owed and stop delivering crude oil to Basin. Other testimony described the deliberate and accelerated efforts made from May 15 to May 27 to collect from Basin what was owed for the month of April. Carl Smith, UPG’s operations manager, testified that had they terminated deliveries on May 15, UPG’s losses could have been cut in half. Logically, then, had UPG followed Strange’s recommendation at the time he made it, UPG might not have lost anything. Since there is probative evidence about the lack of mitigation in the record, the jury may have answered question six as it did because the jury did not know the meaning of the word “mitigation.” They were confused and needed help from the judge to clarify. It was harm to deny them access to the trial court. The trial error committed by the bailiff had a direct bearing on a pivotal issue. But for the conduct of the bailiff, the note would have been sent to the trial court. As it was, the trial court never had the opportunity to do its duty. Even if the majority is correct in assuming that the trial court would have said nothing more or different from the bailiff, it is unnecessary to engage in such conjecture as the damage was done when the misconduct occurred. The jury was left free to misconstrue the meaning of the word “mitigation.” Harm arose because the jury answered a hotly contested issue out of ignorance. I maintain it was the misconduct, not the evidence, that caused the jury to answer the mitigation issue adversely to OKC.
In addition to failing to examine the entire record, the majority’s harm analysis suffers another fatal flaw. Instead of actually focusing on any harm caused to OKC, the majority focused on the effect the bailiff’s statements had on the mental processes of the jurors. We are not to consider the jurors’ mental processes. But *311regardless of the mental processes used to arrive at their answer, the real problem is that they were ill-informed. Under the Rules of Appellate Procedure we are to reverse if the error complained of on appeal probably caused rendition of an improper judgment. Tex.R.App.P. 81(b)(1). I maintain that an improper judgment is one rendered by a misinformed or ill-informed jury.
A jury has the statutory right to receive additional instructions and the trial court has the duty to give them when requested. Tex.R.Civ.P. 285, 286. Further, both parties or their attorneys should be notified of the jury’s request for additional instructions and given notice of, and an opportunity to object to, all supplementary instructions given by the trial court. Scroggs v. Morgan, 133 Tex. 581, 586, 130 S.W.2d 283, 286 (Tex. Comm’n App. 1939, opinion adopted).
While I do not assert, that but for the misconduct of the bailiff, the jury would have returned a different verdict by answering issue No. 6 differently, I am mindful that the intent and purpose of Rule 81(b)(1) is not to require that the complaining party demonstrate that, but for the error, a different judgment would have resulted. If the error had such force as would be reasonably calculated to have affected the jury finding in question, the complaining party has suffered harm through the error and is entitled to a reversal on appeal.
Here, the jury returned a verdict finding that OKC did not fail to mitigate. It was only because the jury answered this issue as it did that the judgment was as large as it was. Because the bailiff took it upon herself to give the jury additional instructions, the jury was deprived of their right of direct communication with the trial court; their right to hear and benefit from what the trial judge would have said; the right to have the judge fulfill his obligation to respond; the right to have the officer in charge properly discharge her duty and not interfere with their confidential deliberations. In the aggregate, this means that OKC received a materially unfair trial under the circumstances.
I would reverse the judgment and remand to the trial court.
SUPPLEMENTAL DISSENTING OPINION