"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
ON MOTION FOR REHEARING. "In holding, in the main opinion in this case, that the error of the trial court in refusing appellant's request for a jury does not require a reversal of the judgment, because, had there been a trial by jury, no other verdict than one in favor of the appellees could have been properly rendered under the undisputed evidence adduced on the trial, we do not intend to announce the rule that a party who has been wrongfully deprived of his right to a jury trial is required to submit his cause to the court. It may be that the party thus denied a trial by jury can stand upon his rights and decline to offer any evidence or to recognize the right of the court to proceed with the trial, and in such case would be entitled to have any judgment which might be rendered against him reversed because of the refusal of the court to grant his request for a jury; but this record does not present a case of this kind. The judgment recites that after the refusal of the court to grant appellant's request for a jury the parties by their attorneys submitted `the matters in controversy, as well of fact as of law, to the court, and the evidence and argument of counsel having been heard and fully understood it is considered by the court,' etc. There is nothing in the record to negative the presumption that the facts of the case were fully developed. The appellant having submited its entire case to the court, and taken its chances on a favorable judgment, is not in the position to claim a reversal of the judgment because of the error of the court in refusing its request for a jury, when the case made by the undisputed evidence is one in which no other verdict than one in favor of appellees could have been rendered.