Leibig v. Steiner ( 1880 )

Mr. Justice Trunkey

delivered the opinion of the court,

It is agreed that there was an express contract. The plaintiff avers it was made in the spring of 1874, about a “year after Zeller moved to Steiner’s farm, and Steiner promised to give Zeller §150 a year, and his wife the same amount for the time they would stay there, from the time they came until the time they left.” This is denied by defendant, who alleges their contract was made before Zeller moved; that Zeller was to pay no rent, have feed for one horse, two cows and potato land; that he and his wife would do the work on the premises, attend their own stock, and' two cows for Steiner; and the butter, eggs and produce to be divided equally between them. It is apparent that the agreement alleged by defendant is consistent with the plaintiff’s claim, for the parties might, subsequent to the original contract, have agreed for an additional consideration of §300 per annum, to be paid to Zeller. Whether they did agree on such further consideration is the real contention.

The plaintiff proved his claim by one witness, Kate Zeller, a granddaughter of one of the parties, and a great-granddaughter of the other, and if her testimony is believed, he is entitled to recover. To repel her statement the defendant was permitted to prove the declarations of Zeller and his wife, made in his presence, before and after the spring of 1874; and they were sufficient to warrant the finding of a contract substantially as claimed by the defendant. Alone, the declarations made before the alleged contract of 1874 amount to nothing, but with those made after, they have weight, .showing that Zeller, all the time he was on Steiner’s farm, asserted a contract in which he made no claim of $800 per annum, nor any other specific sum as its consideration. It was competent to prove those declarations; certainly competent, if it be true, as was objected, that they “had reference to a contract entirely different from the one sued upon.” Whatever the actual contract, it related to the services and compensation of Zeller while he lived on Steiner’s place. One party had as good right to prove the contract which he averred as the other. The first assignment of error is not sustained.

It is urged that the charge, as a whole, was calculated to mislead the jury. If their attention was confined to one view of the case, when there was more than one for them to consider, or if the general tenor of the charge was to mislead, although no particular portion is erroneous, or if those facts only were reviewed which tended to establish one side of the case, or if facts were supposed and submitted, as if proved, when there was no evidence, there is cause for reversal: Reeves v. Railroad Co., 6 Casey 454; Garrett v. Gonter, 6 Wright 143; Parker v. Donaldson, 6 W. & S. 132; Bickham v. Smith, 5 P. F. Smith 335. A judge may give his opinion freely on the weight and value of evidence, for he is the best and safest adviser of the jury; but he has no authority to decide any question of fact, when the party affirming it has sustained his averment by any reasonable proof. Very strong expressions of opinion on the facts are tolerated, indeed sometimes may be necessary. Even entire accuracy in the statement of facts may not be obtained, yet, if the case is left fully and clearly to the jury, under instructions not calculated to mislead, there is no fatal error: Repsher v. Wattson, 5 Harris 365; Bitner v. Bitner, 15 P. F. Smith 347.

As a general rule, that the judge should submit the facts, without expressing his opinion thereon, and without making an argument in favor of either side, is safer, more satisfactory, and better accords with the rights of parties to have disputed facts decided by the jury. It is difficult for a judge to act as an advocate for one of the parties without giving just cause of offence. Exceptional cases arise where it is the duty of the judge to express his opinion of the -facts and guide the minds of the jury to a correct view of the evidence; and, therefore, it has been settled that when he does so without misleading or controlling them in the disposition of the facts, there is no ground for reversing. Often the court below is better able than the court of review to judge of the propriety or necessity of commenting on the evidence or the character of witnesses. The address of counsel to the jury may have been the moving cause,’and of that a court of review would know nothing. For instance, if a witness testify to a decisive fact, yet inconsistent with other testimony, and counsel presses on the jury that if they disbelieve the witness he is perjured, the court could properly* inform the jury that their adverse verdict would not convict him of perjury, and that it would only show they thought him mistaken.

We are not convinced that the charge of the learned judge wa& unjust to the plaintiff. That he doubted the truth of the plaintiff’s sole witness of the contract is clear, but he as clearly left her credibility to the jury, and repeatedly reminded them that they were to determine the facts. He spoke of her testimony as “ her story,” and the plaintiff complains that it sounded strangely in the judge, “ belittled the witness, and accused her of falsehood; prejudiced the minds of the jury against her.” If such was the meaning, or if the word was probably so understood, this cause must go back to be tried again. Its first use is in the sentence, “Her story is straightforward and to the point.” Then, after calling attention to what she said, he asks, “Is the story true?” Following with comments on the' testimony and circumstances, he expressly submitted to the jury to determine if there was a contract, as averred by the plaintiff. The context forbids that the jury could have understood the word “story” in any other sense than narrative, and we are satisfied it was not; nor was it intended to be, in the least degree, prejudicial to the witness. An examination of the charge reveals a somewhat lengthy review of the testimony on both sides, but no misstatement. The jury may have been influenced by the opinion of the judge, but they were neither misled nor bound by his instructions. At the outset he advised them of their duty; to examine the evidence; to judge of the credibility of witnesses and consider their surroundings; to reconcile, if possible, discrepancies in the testimony ; but, above all, to reach the truth through the evidence alone; and, in conclusion, said if they could conscientiously find, from the whole evidence, a contract as set up by the plaintiff', it was their duty to render him a verdict, otherwise to find for the defendant.

Judgment affirmed.