Truckers Exchange Bank v. Conroy

DISSENTING OPINION. While the evidence for the plaintiff in the court below seems to me to be against the weight of the evidence as a whole, and a new trial should be had for that reason, still I think the case should go to the jury, and is not one for a peremptory instruction. There is a vital distinction between a case in which a peremptory instruction is proper, and a case where a verdict of the jury should be set aside because against the overwhelming weight of the evidence. It is true, the line of distinction is not always very clear, but the controlling principles are clear. The principles are sufficiently indicated in the cases of Mobile O.R. Co. v. Johnson, 165 Miss. 397,141 So. 581; Newton v. Homochitto Lbr. Co., 162 Miss. 20,138 So. 564; Columbus G.R. Co. v. Buford, 150 Miss. 832, 116 So. 817.

I do not think that the facts of this case bring it within the principle of Thomas v. Williamson, 185 Miss. 83, 187 So. 220. The majority opinion also cites Perry v. Clarke, 5 How. 495, 497, and 14 Mississippi Digest, Trial, 139. In Perry v. Clarke, supra, in the syllabus it is said: "It is the province of the court to determine whether the evidence conduces to prove the issue." The word "conduces" as here used is in the sense of tends; but it does not authorize the court to decide the issue as to whether evidence, competently admitted, which tends to prove the issue, in fact does so.

In the second syllabus it is said: "When the plaintiff has wholly failed to make out his case, and there is no conflicting testimony, the court may instruct the jury to find for the defendant." This announcement does not authorize the court to decide on the weight of conflicting evidence. Where the evidence for one party, taken alone or in connection with admitted facts, would sustain the case for that party, the court is not presumed to substitute its opinion for that of the jury in weighing the evidence in the case. This case does not support the decision in the case now before us.

So far as the authorities in 14 Mississippi Digest, Trial, 139, are concerned, there are authorities from the Federal Court which hold in accordance with the views of the majority opinion. But the state court is not bound by the Federal Court rule on matters controlled by the Mississippi law — that is, the state law. While we have a high respect for the Federal Court, the state Supreme Court is entitled to give authoritative decisions as to the state law — which decisions are binding on the Federal Court. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, overruling Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865; Wichita Royalty Co. v. City Nat. Bank, 306 U.S. 103, 59 S.Ct. 420, 83 L.Ed. 515, and case note at page 519; Railroad Comm. v. Rowan Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368. But it will be seen from the cases collated in the Digest, under the key number referred to, that the state Supreme Court has, in many cases there cited, announced the law contrary to the holding of the majority opinion here.

At one time there were decisions of this Court to the effect that if the court would set aside a verdict rendered by the jury, it should give a peremptory instruction. McFadden v. Buckley,98 Miss. 28, 53 So. 351. But the fallacy of that view was soon perceived, and the true doctrine was again adopted, to conform to the policy of the state, as indicated by the statutes, sections 592 and 593 of the Code of 1930.

The degree of proof necessary to entitle a party to a peremptory instruction is very much greater than that necessary to entitle him to the verdict of a jury. Alabama Great Southern R. Co. v. Daniell, 108 Miss. 358, 66 So. 730.

Where there is evidence to support an issue, it should be submitted to the jury, and the decision of the jury on the issue is binding unless contrary to the overwhelming weight of the evidence. Gibson v. W.C. Wood Lbr. Co., 91 Miss. 702, 45 So. 834; Bolling v. Red Snapper Sauce Co., 97 Miss. 785, 53 So. 394; Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356.

In testing the question as to whether the proof is sufficient to go to the jury, the test must be the proof for the party against whom a peremptory instruction is sought. If the evidence of that party alone would sustain a suit or verdict for the parties offering the evidence, it should be submitted to the jury, although the preponderant weight of the evidence was against that party, and the jury should determine the conflict.

Under our statute above cited this Court can set aside a verdict, when fully satisfied that it is contrary to the overwhelming weight of the evidence. But its power to do so is limited by statute, and after two juries have approved the evidence by returning a verdict, that verdict is binding upon the court.

Many authorities could be cited to show that the court has no power to give a peremptory instruction where there is competent evidence for the party against whom the instruction is sought, which would sustain the verdict if submitted to the jury, and verdict found, although in the opinion of the judge the evidence for the opposite party might strongly preponderate. Jury trial is a very important institution in our government, and rightly so, because the jury is usually made up of twelve men from different walks of life, of good intelligence, sound judgment and fair character, as required under the law. When the facts are considered by twelve such men, the prejudice of one may be offset, during the deliberations, by the contrary views of the others. Out of twelve such minds, solemnly deliberating upon the evidence and guided by the instructions of the judge, a correct conclusion is apt to follow. Even judges are not perfect instruments for weighing evidence and reaching indisputable conclusions. This is a government of divided powers. There is sound wisdom in the division of powers in all branches of the government, as is the case in Mississippi. The Court should be careful to give effect to the decisions of the jury (under judicial control of the evidence which may go to it), and the rules of law which should be applied thereto. For in such a combination there is apt to be greater security than in the uncontrolled opinion of a judge.