Heithecker v. Fitzhugh , 41 Kan. 50 ( 1889 )

Opinion by

Clogston, C.:

In trials by jury, courts ought to be very careful not to impose an opinion as to the facts in dispute, for it is well recognized that juries have great respect for the opinions of the trial courts, and where such opinions are clearly expressed, a jury rarely if ever returns a verdict in opposition to such expressed opinions. This case shows clearly that the jury were much in doubt about the evidence, and as the court said to the jury in its instructions that it was a question that they would have to decide, “which is right, plaintiff’s or defendant’s theory of the case?” if plaintiff’s theory was correct, and they believed that to be so, of course they would have to find for him; if they believed the defendant’s story, that he bought the notes and that they were not left for collection, of course they would have to find for him. In these conversations with the jury the court so clearly expressed the points in issue, and so forcibly presented them to the jury, that very little consideration will be required to show that the court thought the story of the defendant was unreasonable and not worthy of belief, and so forcibly presented the strong points of the plaintiff’s case that it seemed reasonable and consistent. Now having presented these two extremes, he puts the question to the jury: “What would you do under the circumstances?” Doubtless this brought the matter clearly to the minds of the jury that the court thought that the plaintiff was entitled to a verdict; and doubtless the court was led into this error by its desire to have a small case ended that had taken a long time to try, and not to put the parties to the expense of a new trial; but the court may not in its zeal, and for the purpose of saving expense, practically decide the issues that are submitted to the jury.

The court also, in answer to a question by a juror in relation to the receipt which the defendant claimed he had received from Thornton for money paid him for the notes, said that the fact that the defendant did not offer the receipt in evidence in justice’s court, or disclose the fact that he had a receipt, was a circumstance that they might consider with the other circumstances. The record further discloses that the suit was brought originally in justice’s court, and in that case the defendant allowed the case to go by default; in other words, he made application for a continuance, which was overruled, and then offered no evidence in support of his theory of the case, but immediately appealed from the judgment rendered against him. Now anything that took place at that trial, in which the defendant did not participate, could not possibly bind him, and the fact that he had this receipt which he produced at the last trial, and which he failed to produce at the trial in justice’s court, ought not to have been considered as a circumstance against him. He could only be bound by silence when he was in court, properly presenting his defense. If he had there offered his evidence in support of his theory, and afterward in the district court for the first time produced this receipt, then the court’s instruction to the jury would have been correct, and it would have been a strong circumstance against the defendant. Considering the whole transaction, we are of opinion that the judgment of the court below ought to be set aside and a new trial ordered.

It is recommended that the j udgment of the court below be reversed, and a new trial ordered.

By the Court: It is so ordered.

All the Justices concurring.