Bowe v. Rogers

• Decision Date: 17 December 1880
• Citation: 7 N.W. 547,50 Wis. 598
• Parties: BOWE AND OTHERS v. ROGERS AND OTHERS.
• Court: Wisconsin Supreme Court

50 Wis. 598

7 N.W. 547

BOWE AND OTHERS

v.ROGERS AND OTHERS.

Supreme Court of Wisconsin.

Filed December 17, 1880.

Appeal from circuit court, Winnebago county.Chas. W. Felker and W. B. Felker, for respondents.

B. E. Van Keuren and C. E. Pike, for appellants.

COLE, C. J.

We do not see that the defendants are in a position to object that the circuit judge denied the motion to set aside the verdict and grant a new trial pro forma. If they were entitled to the exercise of any other judicial discretion and judgment on the motion than was actually given it by the circuit judge, they should have insisted upon such exercise when the motion was decided. As the case stands now we must treat the order as though the motion were decided after argument, on full consideration, and denied for reasons which were satisfactory to the conscience and judgment of the circuit judge. But the learned and accomplished counsel for the defendants insists that the circuit court erred in refusing to set aside the verdict as being contrary to the evidence. He claims that there was a clear and decided preponderance of testimony to sustain the defence; that the bias, contradictions, and falsehood of the principal witnesses introduced on the part of the plaintiffs are so apparent that the jury were not warranted in believing their statements. We do not think there is any ground for saying in this case--if, indeed, it is our province to say it in any case--that the jury should not have given credit to the statement of witnesses who came before them and testified in their presence. It is common experience that the testimony of a witness on paper may sometimes seem contradictory and untrustworthy. Yet the appearance of the witness on the stand, his fair, candid manner of testifying, may lead the mind to attach much credit to what he says. Of course, a case might be imagined where it would be the duty of the appellate court to declare that the testimony of witnesses to certain facts was so unsatisfactory, so contradictory and improbable, as to be self-destructive, and have no probative force as evidence. But this is not such a case. Here the truth of the alleged libel necessarily involved an inquiry as to the quantity of materials furnished by the defendant Mrs. Rogers to the plaintiff Mrs. Bowe, for the purpose of making the dress, and the quantity of material returned.

On these points the witnesses on the one side and the other directly contradict each other. It was for the jury to decide upon these conflicting statements, and determine which set of witnesses was the more worthy of credit. We do not feel justified in saying that the jury should not have believed the testimony of Mrs. Bowe, and the statements of witnesses which tended to support her. This would be dangerous ground to go upon, for it is obvious it was for the jury...