Jacobson v. Bunker Hill & Sullivan Mining & Concentrating Co. ( 1891 )

ON REHEARING.

We have carefully examined the petition for a rehearing filed in this ease, as well as the authorities cited therein. Moreover, we have again gone carefully through the record, and the result of our labors has been to confirm us in the opinion heretofore filed in this case. We note the reference of counsel to the provisions of the constitution of the Hnited States and of this state in regard to trial by jury; but counsel must be aware that the nonapplicability of those provisions to the question here under consideration is no longer a mooted question in this country. The right of the legislature to confer upon the courts the power to grant nonsuits in certain cases has been too long and too generally conceded to now be questioned. Section 4354, subdivision 5 of the Revised Statutes of Idaho provides that the court may grant a nonsuit, “upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury.” In the federal courts of the Hnited States a compulsory nonsuit cannot be granted, but the same result is reached through a peremptory instruction to the jury. In the case of Schuchardt v. Allens, 1 Wall. 359, cited in petition, the court says: “Whenever the evidence is not legally sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly.” It has been repeatedly held by the supreme courts of California and other states whose statutes are similar to those of Idaho that the granting of a nonsuit is a question of law. The doctrine that, if there is even a scintilla of evidence, the case must go the jury, is exploded; and in good time, if courts are to be considered as tribunals where the law is administered in justice. Mr. Proffat, in his work on Jury Trial (section 107), says: “The-principle is well established, in legal investigation, that the court is to decide upon the law, the jury upon the facts; and,, acting upon this principle, it would seem to be within the province of the court, when the plaintiff’s evidence is submitted, and not controverted by the defendant, to decide on the sufficiency of the evidence, and to order a nonsuit when the evidence has failed to give the plaintiff a right to recover.” In Pratt v. Hull, 13 Johns. 334, the court says: “This must be a power vested in the court. It results necessarily from their-being the judges of the law of the case when no facts are in dispute.” Say the supreme court of Connecticut in Naugatuck R. Co. v. Waterbury B. Co., 24 Conn. 468: “The jury have-nothing to do with the relevancy and materiality of evidence, nor with inferences of law from facts fully established or not denied.” The supreme court of Maryland (Belt v. Marriott, 9 Grill, 331) held that whenever the testimony adduced by either party “is so light and inconclusive that no rational, well-constructed mind can infer from it the fact which it is offered to> establish, it is the duty of the court, when applied to for that purpose, to instruct the jury that there is no evidence before them to warrant their finding the fact thus attempted to be proved.” Say the supreme court of Maine, in Connor v. Giles, 76 Me. 132: “There is no practical or logical difference between no evidence and evidence without legal weight. There is no object in permitting a jury to find a verdict which a court would set aside as often as found.” We believe the true rule, and that which now finds very general recognition, to be that where the evidence is such that the trial court would, in the event of a verdict thereon, feel compelled to set it aside, it is-the duty of the court to take the case from the jury. Nor do we think trial courts are, or will be, over anxious to assume this responsibility. Our experience is to the contrary. The supreme court of Missouri administer an expressive rebuke to the trial courts of that state for the exhibition of weakness they give in submitting to juries eases in which a verdict ought not to stand if rendered for the plaintiff. It will be found in nearly all the eases upon this question that the decisions have been predicated largely upon the facts of each individual case. The circumstances of this case are peculiar. The plaintiff is seeking to recover a large amount of property, valued by her at millions, and this recovery is sought against third parties, innocent purchasers for value. It is sought under a statute punitive in its character. Surely, under such circumstances, the plaintiff ought, at least, to make a prima facie case; but, as we have before stated, the only evidence in the case which goes directly to the question of abandonment is the testimony ■of the plaintiff; and she not only contradicts herself, but is contradicted by her own witnesses; and it requires no “reading between the lines,” as counsel intimated, to satisfy the court of these facts. As to the animus on the part of plaintiff or her conduct on the witness-stand, this court has only the record to judge from. It would serve no good purpose for the court to again review the testimony. We have examined the case with all the care it is possible for us to bestow, and our conclusion is that the petition for a rehearing should be denied, and it is so ordered.

Sullivan, C. J., and Morgan, J., concur.