DocketNumber: No. 35482.
Citation Numbers: 16 So. 2d 622, 195 Miss. 848
Judges: <bold>Roberds, J.,</bold> delivered the opinion of the court on suggestion of error.
Filed Date: 2/14/1944
Status: Precedential
Modified Date: 1/12/2023
In Faulkner v. Middleton,
"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,
"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 *Page 862
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,
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,
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 *Page 863 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,
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 *Page 864 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.