Black's Adm'r v. Thomas.

• Decision Date: 30 June 1883
• Citation: 21 W.Va. 709
• Court: West Virginia Supreme Court
• Parties: Black's Administrator v. Thomas.

21 W.Va. 709

Black's Administrator

v.Thomas.

Supreme Court of Appeals of West Virginia.

Submitted January 24, 1883

Decided June 30, 1883.

1. The verdict of a jury, which necessarily disposes of all the issues in the case, is sufficient, although it may not respond separately to each several issue or fact presented by the pleadings, (p. 711.)

2. In an action of assumpsit the defendant pleads payment and files with his plea specifications of sets-off exceeding in amount the demand of the plaintiff, and the jury by its verdict finds lor the defendant simply a gross sum. Held:

That under section 9 of chapter 126 of the Code, such verdict must be interpreted as a finding that the sets-off of the defendant exceeded the amount to which the plaintiff was entitled by the sum so found, and the verdict is not, therefore, ambiguous or uncertain, (p. 711.,

3. Where the evidence and not the facts is certified in the bill of exceptions the appellate court will not reverse the judgment unless, after rejecting all the conflicting parol evidence of the exceptor and giving full faith and credit to that of the adverse party, the decision of the trial-court still appears to be wrong, (p. 712.)

4. Where the matters certified in form as facts are in any respect conflicting, such certificate must be treated as containing the evidence and not the facts, (p. 712.)

5. If the verdict can not be sustained according to the foregoing rules, it is as much the duty of the trial-court to set the same aside in such case as it is its duty to sustain the verdict when it does not contravene said rules; and while the appellate court ought not to set aside the verdict with the same facility as the trial-court, because in such court the weight which must always be given to the verdict of a jury fairly rendered is supplemented by that of the opinion of the judge who presided at the trial which is entitled to peculiar respect upon the question of a new trial upon the ground that the verdict is contrary to the evi' dence, still the action of the trial-court in such cases may be reviewed by the appellate court and in a clear and plain case it is the duty of that court to set aside the verdict and order a new trial, (p. 712.)

6. Other rules and principles stated which should govern courts in denying or granting motions to set aside the verdict of a jury upon the ground that it is not warranted by the evidence, (p. 712.)

7. A case in which the appellate court Bet aside a verdict and ordered a new trial upon the ground that the Verdict was clearly and plainly unsupported by the evidence, (p. 714.)

Writ of error to a judgment of the circuit court of the county of Putnam, rendered on the 9th day of March, 1878, in an action in said court then pending, wherein Villie Black & Co. were plaintiffs, and John C. Thomas was defendant, allowed upon a petition of William II. Hogeman, administrator ot Villie Black, deceased,

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgment complained ot.

The facts of the case are stated in the opinion of the Court.

W. H. Hogeman for plaintiff in error.

Mollohcm &-Fontaine and Smith & Knight for defendant in error cited 1 Bibb. 247; 2 Burr. 698; 1 Rob, (old) Pr. 855;, and 7 Leigh 82.

Snyder, Judge, announced the opinion of the Court:

This is a writ of error to a judgment of the circuit court of Putnam county entered May:3, 1880, affirming a judgment of the county court of said county. The action was assumpsit brought in said county court, September 8, 1S77, by the plaintiffs, Villie Black &' Co., against the defendant, John C. Thomas, to recover eight hundred dollars for money advanced by the plaintiffs to the defendant between Octoher 12, 1876 and April 21, 1877. The defendant pleaded non-assumpsit and payment and filed specifications of set-off against the account of plaintiffs, "for twenty and one half months' services as agent in soliciting tobacco from Octoher 5, 1875, to May 20, 1877, at fifty-five dollars per month, one thousand one hundred and twenty-seven dollars and forty cents." Issues Were joined on these pleas, a trial was had by jury and a verdict returned in these words: "We, the jury, find for the defendant and assess his damages at one hundred and seventeen dollars and fifty cents." The plaintiffs, before the jury had been discharged, moved the court not to record said verdict which motion the court overruled and the verdict was recorded. The plaintiffs, then, moved the court to set aside the verdict and grant them a new trial, because the verdict was defective in form and contrary to law and the evidence, and also, because of new and material evidence discovered by them since the trial. In support of said motion they read two affidavits which entirely fail to show any diligence or facts to sustain said motion, and as they were not relied on in this Court, it is unnecessary to state their contents. The court overruled said motion and gave judgment for the defendant on the verdict. The plaintiffs duly excepted to the said rulings and judgment ot the court and by their bill of exceptions all the material evidence is made part of the record.

The objection to the form of the verdict is untenable. It is claimed that under our statute it was the duty of the jury to find for the plaintiffs the amount of their claim and to find for the defendant the amount of his set-off, and if the latter exceeded the former the jury should specify that the verdict found for the defendant was the amount to which he was entitled in excess ot the plaintiff's demand. This form of verdict may he more satisfactory and, perhaps, safer and better in practice. Barton's Law Pr. 263. But such finding is not essential to the validity of the verdict. A finding which necessarily disposes of all the issues is a sufficient verdict, although it may not respond separately to each issue or tact presented by the pleading. Laris & Frazicr v. Childers, 13 W. Ya. 1. In debt or assumpsit, where the defendant files an account of set-off, he is under our statute deemed to have brought a cross-action against the plaintiff for the amount of such account. And "on the trial of the issue in such case, the jury shall ascertain the amount to which the defendant is entitled and apply it as a set-off against the plaintiff's demand, and if the said amount he more than the plaintiff is entitled to, shall ascertain the amount of the excess, including principal and interest. Judgment in such case shall be for the defendant against the plaintiff for said excess, with interest from the date of the judgment till payment." Code, chap. 12() sec. 9

The verdict in this case was for a gross sum in favor of the defendant; and that, under the issues, was necessarily a find- ing that the account of the defendant exceeded the amount to which the plaintiffs were entitled to the extent of that finding. The verdict is not, therefore, ambiguous or uncertain. 1 Rob. Pr. (old ed.) 355, 367; Lanier v. Harwell, 6 Munf. 79.

The only other question and the controlling one in this case is, did the court err in overruling the plaintiff's motion to set aside the verdict upon the ground that it was not warranted by the evidence?

It is always a delicate matter for a court and particularly an appellate court to interfere with the verdict of the jury on questions of fact. The courts of this State are peculiarly jealous of any encroachments by the courts upon the province of the jury wdiich is made the judge of the weight and credit to be attached to the evidence, and it is only in cases of manifest abuse or plain departure from right and justice that the courts can interfere with the finding of the jury in such matters. State v. Thompson, infra.

The rules of law as deduced from the decisions of the appellate courts of Virginia and of this State in such cases may be stated as follows:

I. The bill of exceptions must so present the case that the appellate court maybe able to determine whether the jury has correctly applied the law to the facts in order that it may safely correct any error committed by the jury the presumption being always in favor of the correctness of the verdict; and, therefore, unless the error complained of is made to appear affirmatively it will not be disturbed.

II. Where it is practicable the facts and not the evidence should be certified; but when there is a conflict or complication ot the evidence so as to render it impracticable to certify the facts, the court may certify the evidence Read's Case, 22 Gratt. 924.

III. Where the evidence only is certified the appellate court will not reverse the judgment unless, after rejecting all the conflicting parol evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision of the trial-court still appears to be wrong Newlin v. Beard, 6 W. Va. 110.

IV. Where the matters certified in form as facts are in any respect conflicting, such certificate must be treated as containing the evidence and not the facts; because facts cannot be conflicting, but arc necessarily consistent with each other Read's Case, supra,

V. The verdict will be set aside, when the issue involves facts only, if the facts proved clearly required a verdict different from that found by the jury Pryor's Case, 27 Graft. 1009.

VI. A new trial ought not to be granted on the ground that the verdict is contrary to the evidence, except in cases of plain deviation from right and justice; not in a doubtful case merely because the court, if on the jury, would have found a different verdict. Every reasonable presumption should be made in favor of the verdict of a jury fairly rendered, and such verdict ought not to be interfered with by the court unless manifest injustice and wrong has been done, or unless the verdict is plainly not warranted by the facts proved Blosser v. Harshbarger, 21 Gratt. 216.

VII. Where some evidence has been given which tends to prove the fact in issue, or the evidence consists of...