Heathcote v. Barbour , 36 R.I. 453 ( 1914 )

This is an appeal from a decree of the municipal court of the city of Providence, admitting to probate a certain instrument in writing purporting to be the will of Jane Heathcote, late of Providence, deceased, mother of the appellant, George H. Heathcote, and sister of the appellee, Margaret Barbour. The appeal was taken by George H. Heathcote for himself and as next friend of his son, Clifford D. Heathcote. The appeal was tried before a justice of the superior court sitting with a jury. The jury rendered a general verdict that said instrument was not the will of Jane Heathcote and found specially that Jane Heathcote was unduly influenced when she executed said instrument and that she did not have testamentary capacity when she executed said instrument. The appellee filed a motion for a new trial. The justice presiding at the trial granted said motion and the case is before us upon the appellants' exception to the decision of the justice upon said motion.

The evidence upon the issues involved was contradictory. The justice presiding at the trial says in his rescript that he listened intently to the testimony as it was given by the witnesses and that he again carefully considered all the evidence before deciding the motion for a new trial. It is his deliberate judgment that the general verdict of the jury and their answer to each of the special findings is against the preponderance of the evidence. In the performance of the duty which is placed upon him by the statute he has set the verdict aside as failing to do justice between the parties in accordance with the evidence.

The appellants ask us to examine the transcript and, without regard to the decision of said justice, pass upon the preponderance of the evidence solely as it shall appear to us from the written transcript. This request ignores the change which was made in appellate proceedings upon the creation of the Superior Court. The General Assembly apparently appreciated the inconclusive and unsatisfactory nature of an examination of a written transcript alone for the purpose of determining the true weight of the evidence given at a jury trial; and in the Court and Practice Act it has introduced a new step in appellate procedure and has provided that if a party feels aggrieved by the verdict of a jury he shall not be permitted to have such verdict reviewed by this court, unless he shall first present the question of the weight of the evidence to the justice, who presided at the jury trial and obtain his decision upon the same. The purpose of that provision, so far as it relates to appellate proceedings, is plain. It is that, before the question comes here, there shall be upon the record the decision of one of special training, who sat in the atmosphere of the jury trial, who, quite likely, will be unaffected by any passion or prejudice which may have influenced the jury. He saw and heard the witnesses and with that advantage can apply the test of his experience to the questions of their credibility and the value of their testimony; and then he must pass his deliberate judgment as to whether the jury's verdict truly responds to the weight of the evidence upon the issues in the case.

In McMahon v. Rhode Island Company, 32 R.I. 237, this court, in an opinion by Parkhurst, J., has considered at length the distinction between the function formerly exercised by the Appellate Division of the Supreme Court upon a petition for a new trial, where only the transcript of the evidence was before the court, and that of a justice of the Superior Court, who has presided at a jury trial, upon a motion for a new trial presented to said justice under the procedure in effect since the creation of the Superior Court. In accordance with the rule generally adopted in states having an arrangement of courts similar to our own, we have approved the doctrine that trial courts "ought to independently exercise their power to grant new trials, and, with entire freedom from the rule which controls appellate tribunals, they ought to grant new trials whenever their superior and more comprehensive judgment teaches them that the verdict of the jury fails to administer substantial justice to the parties in the case." Wilcox v.Rhode Island Co., 29 R.I. 292. In a number of cases we have held, and it has become the general rule governing the relation between this court and the Superior Court in that regard, that, "when the verdict of a jury has been disapproved by the judge who presided at the trial, and a motion for a new trial has been granted by him on the ground that the verdict fails to administer substantial justice, such exercise of his power will not be disturbed by this court, unless it clearly appears that such conclusion of the trial judge is erroneous." Noland v. RhodeIsland Co., 30 R.I. 246.

The point from which this court is to consider the jury's verdict is changed by the provision for a motion for new trial and its determination by the justice presiding at the jury trial. Formerly the question came before the Supreme Court upon a petition for a new trial and the exception was to the jury's verdict; now the matter comes before us upon an exception alleging error in the judge's decision, granting or refusing a new trial.

In considering an exception to the decision of a justice of the Superior Court on a motion for a new trial, it becomes the duty of this court to carefully examine the transcript and to obtain the benefit of the arguments and the briefs of counsel bearing upon the facts of the case as presented by the evidence. Such examination of the transcript, however, is not made solely, as it formerly was, for the purpose of deciding from it alone as to the preponderance of the evidence. We have now not only the transcript but also the decision of the justice and it is from a consideration of both that we must determine whether it clearly appears that the justice was in error in his decision on the motion for a new trial, which is the question brought before us by the exception. In this case we have read the entire transcript; have given due weight to the briefs and argument of counsel; and we do not find such error in the decision of said justice. We have said in a rescript recently filed (Arnold v. Treat, Exception No. 4,696), which language we adopt as equally applicable to this case: "The testimony upon every essential question bearing upon the issue submitted to the jury was conflicting. The appearance of the witnesses upon the stand, and their manner in giving their testimony, is of much assistance in determining as to the weight of the evidence upon the various points in controversy. This advantage the presiding justice had, and we have not; his deliberate judgment has forced him to the conclusion that justice between the parties demands the submission of the cause to another jury. We cannot say that it clearly appears to us that this judgment was erroneous."

The appellants' exception is overruled. The case is remitted to the Superior Court for a new trial.