Woodard v. Cooney

NORTONI, J. The appellant assigns but one error. The assignment is in the following language: “The court erred in overruling defendant’s motion for a new trial based upon the fact that the verdict of the jury was not the verdict of an impartial and unprejudiced jury and was not supported by the evidence, but was contrary to and against the overwhelming weight of the evidence.” Upon this proposition, sole and only, he asks this court to reverse and remand the cause. It [160] is true, there was a conflict of testimony on the material issue. The plaintiff testified that defendant was to sell his land at twenty-five dollars per acre for a total commission of fifty dollars, and this was the only arrangement or contract he ever made with defendant about selling the land; that at this time defendant had then already contracted his land to Sheehy at $26.50 per acre and then had a check for five hundred dollars as a payment on the sale in his possession, and practiced deception upon plaintiff by telling him that he could not possibly induce the purchaser to pay more than twenty-five dollars per acre. Defendant says he had a prior arrangement with plaintiff to sell his land at twenty-five dollars per acre; that he was to have fifty dollars therefor and in event he sold for more than twenty-five dollars per acre he was to have all over and above twenty-five dollars he sold for in addition to* the fifty dollars as his commission, and that this arrangement was reaffirmed on the day of sale by a writing drawn up by Hollister, binding plaintiff to sell the land to Sheehy, but admits having the check for five hundred dollars then in his possession but did not think he told Woodard about it; admits that he had signed plaintiff’s name to a purported contract of sale at $26.50 per acre, prior thereto, om that very day. The two witnesses for defendant bore out his story in different parts. Here was a sharp conflict of .testimony on the material point in the case. The court after giving proper instructions on the issues, instructed the jury as follows: . “The court instructs the jury that you are the sole judges of the weight of the evidence and the credibility of the witnesses and in passing upon the weight to* be given to the testimony of any witness you may consider the demeanor of the witness on the witness stand and the reasonableness or the unreasonableness of his evi [161] deuce when compared with all the other facts proven in the case.” This instruction means what it says. It does not mean that this court is the judge as to the credibility of the witnesses and the weight to be given to their testimony. It does mean that the jury is the sole judge in this behalf. The accumulated wisdom of ages show that there can be no safe rule other than this to follow. The jury is constituted of men, peers of the litigants. As the jurors sit in the box their senses are awakened and moved, their judgments appealed to, made up and matured by the same circumstances, considerations and truths that would move other disinterested men under like conditions. They have the witnesses before them upon the stand, face to face. The jurors can look the witness in the eye as he gives his testimony. They can notice the manner of his expression, take note of his general deujeanor and carriage upon the stand and discern with what degree of frankness and candor, or of reservation, or seeming mental reservation he gives his story and can form an intelligent opinion as to whether a given witness is really aiding the discovery of the truth or is attempting to suppress it. As a rule the jury has a general idea, at least, of the character and standing of the witnesses in the community in which they reside, and in the final determination of the cause can and do bring all these into account when the evidence of the witnesses is being weighed in the balance along with that of other witnesses and the established facts of the case. These considerations, together with the humanity of man, the mercy and kindness in the human heart which at times tempers and modifies the rigors of the law are the fundamental principles upon which rest the popularity and perpetuity of our jury system. This being true, beyond refutation, then the courts who- have none of these advantages to ascertain [162] the truth and the integrity of the statements made by taking the measure of the witnesses on the stand, certainly ought to ponder long before disturbing a verdict arrived at by intelligent men under the very best safeguards the evolution of the law and the experience of the centuries have been able to develop, and so it is the courts have laid down the general rule that when a verdict is supported by substantial evidence, the appellate courts will not interfere with the action of the trial court in overruling a motion for a new trial on the ground that the verdict is against the weight of the evidence nor will they interfere when the evidence is conflicting. [Cosgrove v. Leonard, 134 Mo. 419, 33 S. W. 777, 35 S. W. 1137; Manny v. Logeman, 105 Mo. App. 552, 80 S. W. 48; Haven v. Railway, 155 Mo. 216, 55 S. W 1035; James v. Mutual Reserve Fund Life Ass’n, 148 Mo. 3, 49 S. W. 973; Moore v. Railway, 73 Mo. 438; Bray v. Kremp, 113 Mo. 552, 21 S. W. 220; Harrison v. Bartlett. 53 Mo. 170.] To this general rule, however, there are the following exceptions. The appellate courts will interfere only in case there is no substantial evidence to support the verdict or in case that it appears on the record clearly that the verdict is arbitrary, or is the result of passion, prejudice or misconduct on the part of the jury. [Chouquette v. Railway, 152 Mo. 257, 53 S. W. 897; Burdict v. Railway, 123 Mo. 221, 27 S. W. 453; Friedman v. Pulitzer Pub. Co., 102 Mo. App. 683, 77 S. W. 340; Reid v. Ins. Co., 58 Mo. 421; Price v. Evans, 49 Mo. 396; Lockwood v. Ins. Co., 47 Mo. 50; Woolfolk v. Tate, 25 Mo. 597; Cosgrove v. Leonard, Manny v. Logeman, supra.] Our Supreme Court, speaking through Judge Marshall, has well said: “It is not our practice to set aside a verdict when there is any evidence to 'support it, unless it shows on its face that it must have been the result of passion, prejudice or misconduct of the jury, and it is not enough that there is an insufficiency of evi [163] deuce; a case will not be reversed, unless there is no evidence tending to establish the fact found by the jury. The fact that the verdict is not such as the appellate court would have reached upon the conflicting evidence adduced, will not warrant a reversal.” [James v. Mut. Reserve Fund Life Ass’n, 148 Mo. l. c. 15, 16, 49 S. W. 978.] There is nothing in the record here tending to show misconduct on the part of the jury. There is nothing tending to show that the jury acted arbitrarily and disregarded the instructions of the court, nor is complaint made against the verdict on either of these grounds. There is nothing in the record that shows clearly that the verdict is the result of passion or prejudice on the paid of the jury. It is apparent that the jury believed plaintiff’s testimony and ‘found accordingly. The jury was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. It had the undoubted right to believe plaintiff and so find, if it saw fit to do so; or it had the right to believe defendant’s testimony, if it saw fit to do so, and find against plaintiff on the issues. The jury chose to find the facts as the plaintiff stated them. With this we have nothing to do, if there is substantial evidence to support that finding. There is not only substantial but ample evidence to support the verdict in this case. There being nothing in the record to bring the case within the exceptions to the general rule above stated, to-wit, that the. verdict is arbitrary or the result' of passion, prejudice or misconduct on the part of the jury, it being supported by substantial evidence, the judgment of the trial court must be affirmed. It is so ordered. Bland, P. J., and Goode, Jconcur.