Max v. Columbus Banking & Insurance Co.

Cooper, C. J., delivered the opinion of the court. It would have been more satisfactory if the court below had. given the seventh instruction asked by the plaintiff, which it refused outright, and had not modified the second, as was done. But the sixth instruction given for the plaintiff distinctly informed the jury that he was entitled to recover unless, from all the evidence in the case, they believed that the assured overvalued his goods, “ knowingly and willfully, for the purpose of obtaining from the defendant more than he was entitled to, or for the purpose of otherwise defrauding the defendant.” That the jury did believe this from “ all the evidence ” is shown by the verdict, and if they did so believe, it is manifest that no other result would hdve followed if the seventh instruction had been given. Where a great number of instructions are asked by a party, with shades of difference in the rules announced by them, and one is given and another slightly different and more favorable to him is refused, it ought at least to probably appear that injury may have been done to warrant a re [51] versal. By the subtle trained mind of the lawyer nice distinctions may be clearly appreciated, but to the plain, common sense of the average juror, which is appealed to by our laws for decisions of fact, it is more than doubtful if. a distinction would appear between the instruction given and that refused, which on the clearly defined issue presented in this case would have carried the verdict on one instruction for the defendant, and on the other for the plaintiff. Moye v. Herndon, 30 Miss. 110. The second instruction seems to us to have, been correct as asked, and not wrong as given. The sole effect of the modification made was to direct the attention of the jury, and perhaps unnecessarily, to the instructions given for the defendant. On the whole case, however, we perceive no error necessitating a reversal. The judgment is affirmed.