Faulkner v. Middleton , 186 Miss. 355 ( 1939 )

ON SUGGESTION OF ERROR. The argument is again earnestly made that the verdict is against the great or overwhelming weight of the evidence, and it is stressed that only two witnesses, one of them interested, testified in support of the verdict, while twelve other witnesses were called by appellant, and that most of these witnesses swore in positive contradiction of some of the material parts of appellee's version.

Many cases are cited by appellant which affirm the power and duty of the court to set aside verdicts when manifestly against the overwhelming weight of the evidence. That rule has prevailed ever since the establishment of the constitutional judicial system in this state, and existed at the common law. Universal, etc., Co. v. Taylor, 178 Miss. 143, 149, 172 So. 756. In fact, in one of the earlier cases, Sims v. McIntyre, 8 Smedes M., Miss., 324, 327, it was phrased so strongly as to say that if the jury has "found palpably against the preponderance of evidence" a new trial will be allowed. And when, in full view of the previously established rule, Section 31, Constitution 1890, providing the right of trial by jury was ordained in the precise language of previous constitutions, it carried with it the stated power and duty as a part of that section as fully as if therein written in so many words. Drummond v. State, Miss., 185 So. 207, 210.

The Court has never attempted to prescribe any elaborate formula, adequate to meet all cases, as to when a verdict will be considered against or contrary to the great or overwhelming weight of the evidence. Obviously it would be as nearly impossible to do so as to attempt to define a reasonable doubt — not to mention other familiar phrases in daily use in the law. The expressions on the point have usually been as, for instance, in Teche Lines, Inc., v. Bounds, 182 Miss. 638, 652, 179 So. 747, 751, that a verdict will be set aside "when, but only when, clearly or manifestly against all reasonable probability;" or as said in Beard v. Williams, 172 Miss. 880, 884, 161 So. 750, 751, when the Court is "convinced, from the evidence, that the jury has been partial or prejudiced, or has not responded to reason upon the evidence produced." Mindful that it is a duty not of choice but one imposed by the constitution itself, the trial judge, and upon review the appellate court, must apply to the evidence, all parts of it considered together, a calm, deliberate and impersonal judgment founded in the lessons of long experience and observation in the lives of men in all their various ranks, and measure thence according to sound human standards of reasonable probabilities.

But in measuring the probabilities, the character and cogency of the evidence, its reasonableness, its harmony or inharmony with the undisputed facts, or with the facts of common knowledge, or with the laws of nature, the character and intelligence of the witnesses, their several attitudes, and the like — not the number of witnesses for the respective sides — must be among the tests. The problem is not to be reduced to any such a simple process as counting the witnesses, although this in some cases, as for instance in Mobile O. Railroad Co. v. Bennett, 127 Miss. 413, 90 So. 113, may have some bearing. At last, the question is: Can the Court say with confidence that the verdict is manifestly against all reasonable probability; that manifestly it has not responded to reason upon the evidence produced? Unless the Court can so say, the verdict must stand, for otherwise there would be only a matter of conflict in the evidence, in which case, if the issues have been fairly submitted to the jury on proper instructions, the verdict is irreversible. Goodyear, etc., Co. v. Anderson, 171 Miss. 530, 536, 157 So. 700; Cox v. Tucker, 133 Miss. 378, 385, 97 So. 721; and see the long list of cases from this Court gathered under Note 16 in 5 C.J.S., Appeal and Error, p. 616, sec. 1648.

We have reexamined the record and we cannot confidently say that on the issue of liability the verdict is clearly against all reasonable probability. On the issue of the inadequacy of the amount allowed by the verdict, we add to our former opinion only the observation that on that issue the bald facts speak for themselves; manifestly on that issue, and in allowing only $500 for the complete loss of an eye, there being no contributory negligence, the jury did not respond to reason upon the evidence produced.

Suggestion of Error Overruled.