Cleveland v. Wheeler

• Decision Date: 24 April 1913
• Citation: 8 Ala.App. 645,62 So. 309
• Parties: CLEVELAND et al. v. WHEELER.
• Court: Alabama Court of Appeals

62 So. 309

8 Ala.App. 645

CLEVELAND et al. v. WHEELER.

Court of Appeals of Alabama

April 24, 1913

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Felix S. Cleveland and others against E.M. Wheeler. Judgment for plaintiffs for less than the relief demanded and they appeal. Affirmed.

Gaillard & Mahorner and Gregory L. & H.T. Smith, all of Mobile, for appellants.

Stevens Lyons & Dean, of Mobile, for appellee.

THOMAS, J.

The contract here sued on was set out in substance, construed and the measure of damages for its breach determined on the former appeal reported in 170 Ala. 426, 54 So. 277, to which reference is made for a full understanding of the case. Upon the subsequent trial the only issue between the parties was one of fact as to the amount of damages recoverable under the rule of admeasurement as fixed on the former appeal referred to. The evidence was conflicting both as to the number of feet of timber on the land and the market value of it at the time of the breach by the buyer of said contract of purchase. The plaintiffs' evidence tended to show that there were 683,706 feet board measure, and each of his witnesses swore that its market value was from $2 to $2.50 per thousand feet. Upon the conclusion of the evidence the court at the request of plaintiffs gave in writing the following charge: "If the jury believe the evidence in this case, they must return a verdict for the plaintiffs for the difference between the price of the timber at which plaintiffs agreed to sell it to the defendant and the value of the same at the time of defendant's breach of the contract, together with interest," etc. The court gave also another charge in writing, but at defendant's request, as follows "The court charges the jury that they may deal with the testimony of any or all of the witnesses as to the value of the timber as the jury pleases, giving it credence or not as their own experience or general knowledge of the subject may dictate." There was verdict and judgment for plaintiff in the sum of $457.53, not satisfied with the amount of which he appeals; and the only assignment of error here insisted upon is the alleged error of the court in giving the written charge at defendant's request last quoted.

The charge is predicated upon the ruling of our Supreme Court in the case of Andrews v. Frierson, 144 Ala. 476, 39 So. 513, where, quoting approvingly from the Supreme Court of the United States in Re The Conqueror, 166 U.S. 110, 17 Sup.Ct. 510, 41 L.Ed. 937, they say: "While there are doubtless authorities holding that a jury *** has no right arbitrarily to ignore or discredit the testimony of unimpeached witnesses so far as they testify to facts, and that a willfull disregard of such testimony will be ground for a new trial, no such obligation attaches to witnesses who testify merely to their opinion; and the jury may deal with it as they please, giving it credence or not as their own experience or general knowledge of the subject may dictate."

The opinions of witnesses in certain matters are always admissible in evidence for the purpose of aiding, but never of controlling the judgment or opinion of the jury on that matter. Any other rule would amount to substituting the judgment of the witness for that of the jury. And, while in reaching their judgment or conclusion as to the particular matter, they cannot act on particular facts material to the inquiry resting in their private knowledge, but as to these must be governed by the evidence adduced; yet they should and must in order to act intelligently, test out the opinions of witnesses by their own general knowledge of the subject, and should and do of necessity have the power to reject or accept such opinions according as they...