OPINION
Thе New Mexico Court of Appeals reversed the judgment of the trial court with directions tо grant plaintiff a new trial. Levine v. Gallup Sand and Gravel Company, Inc., et al,
Our disagreement with the Court ■of Appeals lies in the fact that we believe the principal and ultimate issue presented is whether the refusal of the trial court to рoll the jury upon request constituted reversible error. We agree with the Court <of Appеals that in a civil case the parties are entitled as a matter of right to have the jury polled upon making a proper request therefor; that plaintiff made a prоper request; and that the error committed by the refusal of the request was not cured by the subsequent polling of the jury.
However, all error is not reversible. City of Albuquerque v. Ackerman,
We do not wish to be misunderstood as suggesting the right to have the jury polled is discretionary with the trial court, or that the trial court may properly consider whether prejudice will or will not result if the jury is not pоlled. As already stated, it is the duty of the trial court to poll the jury upon proper request. Our opinion is, however, that the mere failure to poll the jury upon proper request does not in itself constitute reversible error. Upon appeal from a refusal by the trial court of a proper request to poll a jury, we would apply the following standard adopted in Jewell v. Seidenberg, supra, in determining whether reversible error has been committed: “* * * [W]e will accept the slightest evidence of prejudice, and all doubt will be resolved in favor of the party claiming prejudice. * * *”
In the present case there is not the slightest evidence of prejudice to plaintiff by reason of the refusal of his request to have the jury polled. In fact he makes no claim that such evidence exists. Hе seeks reversal solely upon the error of the trial court in denying his request. We have already ruled this is not reversible error.
The only matters in the record before us, which bear upon the validity of the jury verdict, and particularly upon the fact that the required number of jurоrs concurred therein, are the consistency between the verdict and the answers tо the special interrogatories, the subsequent polling of the jury by the trial court referrеd to in the opinion of the Court of Appeals, and affidavits secured from six of the jurors аnd filed by defendants pursuant to authority granted by the trial court. These matters clearly show thе verdict to be proper and to represent a concurrence of the rеquired number of the jurors. We are not suggesting the subsequent polling of the jury or the filing of the affidavits сured the error of the trial court, but they do demonstrate that no prejudice resulted to plaintiff by the error.
In order to avoid any possible misinterpretation of our reference to the affidavits which relate to the verdict, we have not departed from the rule that jurors should not be permitted to impeach their verdict by affidavits made after their discharge. Skeet v. Wilson,
We need not rule on the propriety ■of рermitting jurors to affirm or substantiate their verdict by their affidavits, since there is a completе absence in the record in this case of anything to show irregularity in the verdict or prejudiсe to plaintiff. Thus, there is no need for evidence affirming or substantiating the verdict. The validity аnd regularity of a verdict are presumed. See Morris v. Merchant,
The decision of the Court of Appeals must be reversed and this cause remanded to that court with instructions to affirm the judgment of the trial court.
It is so ordered.