Montgomery Ward & Co. v. Windham , 195 Miss. 848 ( 1944 )

ON SUGGESTION OF ERROR. The original opinion in this case, 16 So. 2d 622, 625, contains this expression, ". . . it is manifest that the great weight and preponderance of the evidence on the cause of this accident and the liability therefor are on the side of defendant — so much so that it is our duty, in the interest of justice, to reverse and remand the case so that another jury may pass upon these questions . . ." It is suggested that by these words we have prescribed a different requirement defining the conditions under which this court must reverse jury verdicts as being against the weight of the evidence from that heretofore announced by this court, and one which is more burdensome to the victor in that verdict.

In Faulkner v. Middleton, 186 Miss. 355, 188 So. 565, 190 So. 910, we said:

"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 prejudicial, 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."

Other expressions have been used in the history of this court — such as against the great preponderance, against the weight, contrary to overwhelming weight, of the evidence. See Miss. Digest, Vol. 2, under Appeal and Error, key number 1003, and pocket supplement thereto. In the recent case of Gerard v. Gill,195 Miss. 726, 15 So. 2d 478, 480, dealing with the finding by the chancellor, we said: "This Court has used different expressions to describe the conditions under which it is its duty to reverse the chancellor on his finding of fact — such as that the finding is manifest error, clearly erroneous, plainly or manifestly wrong, against the great preponderance, or overwhelming weight, of the evidence."

Each case must depend upon its own peculiar circumstances. There never has been and, it is safe to say, never will be two exactly alike. No combination of facts has ever recurred in exactly the same order and sequence and relation to each other. When the quoted provision from the original opinion is considered as an entirety and as applied to the evidence in this case we do not think it has incorrectly defined the test in this case.

But, aside from whether the words used define the rule with precise exactitude, the reversal is based upon the comparative weight and effect of the evidence on behalf of appellant and appellee, and the opinion summarizes that evidence. The comparison speaks for itself. We did not need to define the rule. We refrained from analyzing the evidence and setting forth the several reasons which prompted our conclusion because the case is to be retried, and we thought that should not be done.

It is now appropriate, as expressing our general attitude on this question, to quote from Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3, 4, where this court said: "It is with great reluctance, as we have often said, that we will reverse a verdict of a jury on the facts. At the same time the obligatory duty of the courts in that respect is as expressed in two recent opinions by Judge Ethridge, as follows: ``We are conscious of the fact that the verdict of a jury is to be given great weight, and is the best means, when fair, of settling disputed questions of fact. Nevertheless, throughout the entire history of jury trials, the courts have exercised a supervisory power over them, and have granted new trials whenever convinced, from the evidence, that the jury has been partial or prejudiced, or has not responded to reason upon the evidence produced. The duty of the court in supervising trials by jury is such a vital part thereof that no court may refuse to exercise such power whenever fully convinced of its duty so to do.'"

In the original opinion is this statement, "The second contention — master and servant relation — presents a very doubtful question, but a majority of the judges are of the opinion that admitting as true, as must be done on this motion, all of the testimony bearing upon this fact, with the natural inferences to be drawn therefrom under the circumstances, that it establishes the relation of master and servant, and that this servant deposited the substance on the floor." Appellant says that we thereby admitted the existence of the suggested facts. We were discussing, and the language is directed to, whether there was sufficient evidence for the case to go to the jury on these questions. We might have used more apt language, but we think it is clear, considering the questions under decision and the entire opinion, that we were not adjudicating that, on the whole record, these facts had been proved, but merely that there was enough evidence bearing upon them to withstand a motion for a peremptory instruction. What we said as to the weight of the evidence applies to these facts as well as to the other facts essential to establish appellant's right to recovery in this case.

Suggestion of error overruled.