Cluck v. Abe

• Decision Date: 24 June 1931
• Docket Number: No. 27667.,27667.
• Citation: 40 S.W.2d 558
• Parties: JOHN P. CLUCK, Appellant, v. ALBERT C. ABE.
• Court: Missouri Supreme Court

40 S.W.2d 558

JOHN P. CLUCK, Appellant, v.ALBERT C. ABE.

No. 27667.

Supreme Court of Missouri.

Division One, June 24, 1931.

Appeal from Circuit Court of City of St. Louis.— Hon. Robert W. Hall, Judge.

AFFIRMED.

Strubinger & Strubinger for appellant.

(1) The verdict of the jury is not supported by substantial evidence: (a) Because the testimony of the defendant and his wife, respecting the manner in which the collision between defendant's automobile and the motorcycle occurred, is opposed by the established physical facts of the case, the laws of physics, common observation and experience, and is shown to be false by all the other facts in the case.Highfill v. Wells, 16 S.W. (2d) 100;Anderson v. Davis, 284 S.W. 454;Sexton v. Met. St. Ry., 149 S.W. 25;Schupback v. Meshevsky, 300 S.W. 467;Kibble v. Railroad Co., 227 S.W. 46;Chawkley v. Ry. Co., 297 S.W. 20;Waldmann v. Const. Co., 233 S.W. 242.(b) Because the defendant's testimony is so full of contradictions and irreconcilable statements of material facts as to wholly destroy it and render it unbelievable.Van Bibber v. Swift & Co., 228 S.W. 69;Steele v. Ry. Co., 265 Mo. 97, 175 S.W. 177;Oglesby v. Ry. Co., 177 Mo. 272;Steinman v. Brownfield, 18 S.W. (2d) 530.(2) The verdict of the jury was contrary to the law of the case.Chawkley v. Ry. Co., 297 S.W. 20.(3) Instruction 1, given by the court of its own motion, was fatally erroneous and prejudicial and must lead to a reversal of the judgment below.It permitted the jury to determine the issues in the case and to consider evidence upon issues abandoned by plaintiff, and is misleading and improper in form.Wallace v. Burkhardt Mfg. Co., 3 S.W. (2d) 387;McCaslin v. Mullins, 17 S.W. (2d) 684;Roemer v. Wells, 257 S.W. 1056;Head v. Lbr. Co., 281 S.W. 441;Peppers v. Ry. Co., 295 S.W. 761.(4)The court erred in refusing to permit the plaintiff to exhibit his ankle to the jury showing the marks on the outside made by the defendant's bumper and the marks on the inside of his ankle made by the cylinders of his motorcycle.Senn v. Ry. Co., 108 Mo. 142;Anderson v. Davis, 284 S.W. 454.

Jones, Hocker, Sullivan & Angert for respondent.

(1) The verdict of the jury should be permitted to stand because it is supported by the evidence, and the evidence is not so contrary to the physical facts as to conclusively show it to be false.Funk v. Endsley, 1 S.W. (2d) 1038;Scroggins v. St. Ry. Co., 138 Mo. App. 215;Kibble v. Ry. Co.285 Mo. 603;West v. Duncan, 249 S.W. 127;Holland v. St. Ry. Co., 157 Mo. App. 476, 481.The respondent's testimony is not so full of contradictions and irreconcilable statements as to render it unbelievable, and the authorities cited by appellant under this point do not support his contention.See authorities cited, supra.(2)The trial court committed no reversible error in refusing to allow the plaintiff to exhibit his ankle to the jury, showing marks on the outside and inside thereof, for the reason that these marks would have had no tendency to prove how or by what particular part of the machines involved in the accident the scars were made, and it was discretionary with the court to exclude it unless this discretion was abused.22 C.J. 789;Barefoot v. White Street Line, 170 Mich. 349, 136 N.W. 437;Thompson v. Life Ins. Co.(Me.), 95 Atl. 231;Graves v. State, 58 Tex. Crim. App. 42.(3) Where the evidence is conflicting, it is the province of the jury to determine in whose favor it preponderates.Clukies v. Ryall, 280 S.W. 85;Ensler v. Ry. Co., 23 S.W. (2d) 1034;Farmers State Bank v. School District, 220 Mo. App. 1312;Robertson v. Construction Co., 294 S.W. 426.(4)Appellant is precluded from insisting here that the evidence was contrary to the physical facts, is full of contradictions or is against the law, for the reason that he submitted the case to the jury by his own instructions and did not ask for a directed verdict, thereby admitting there was a case for the jury.Brown v. Deal, 256 S.W. 114;Kennefick-Howard Co. v. Ins. Co., 205 Mo. 294;Henson v. Boyd, 116 U.S. 379, 165 Sup. Ct. 571;Hart Ins. Co. v. Unsell, 144 U.S. 439, 12 Sup. Ct. 617, 36 L. Ed. 496;Anderson v. Davis, 284 S.W. 453.

FRANK, J.

Action to recover the sum of $10,000 for personal injuries alleged to have been caused by a collision between a motorcycle operated by plaintiff and an automobile operated by defendant, at the intersection of two public streets in the city of St. Louis.Verdict and judgment for defendant, and plaintiff appealed.

Plaintiff's first contention is that the verdict in defendant's favor is not supported by substantial evidence.

The sufficiency of the evidence to support the verdict in defendant's favor is not an open question in this court; therefore we need not concern ourselves about what the evidence showed in that regard.The burden was not on the defendant, but was on the plaintiff to make out the case stated Verdict for in his petition.In a case where the allegations Defendant: of the petition are denied by the answer, and the Unsupportedplaintiff offers oral evidence tending to support by Substantial the allegations of the petition, the defendant is Evidence. entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself.The court has no right to tell the jury that it must believe the witnesses.The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached.[Gannon v. Gas Co., 145 Mo. 502;Ford v. Wabash Ry. Co. et al., 300 S.W. 769, 777-778;State ex rel. Missouri Gas & Electric Service Co. v. Trimble et al., 271 S.W. 43, 47, and cases cited;Schroeder v. The C. & A. Ry. Co., 108 Mo. 322, 18 S.W. 1094.]

In the instant case, after plaintiff offered oral evidence tending to support the allegations of his petition, defendant offered evidence which he claims was sufficiently substantial to support the verdict in his behalf.Plaintiff, however, contends that the verdict is not supported by substantial evidence because (1)defendant's evidence respecting the manner in which the collision occurred is opposed by the established physical facts of the case, the laws of physics, common observation and experience, and is shown to be false by all the other facts in the case, and (2) said evidence is so full of contradictions and irreconcilable statements of material facts as to wholly destroy it and render it unbelievable.

It is settled law that appellate courts may disregard the testimony of a witness touching a material issue of fact where such testimony is at war with the physical facts, contrary to the law of physics, inherently impossible and unbelievable or the inferences to be drawn therefrom are manifestly false, but before the sworn testimony of a witness should be disregarded upon such legal conclusions they should be so clear and irrefutable that reasonable minds would not differ in respect thereto.[10 R.C.L. 1009;Schupback v. Meshevsky, 300 S.W. 465, 467.]

Conceding, without deciding, that defendant's evidence was contrary to the law of physics, inherently impossible and unbelievable and so contradictory as to be self-destructive, that situation, on the record as presented, would leave the case standing on plaintiff's evidence.The fact, if it were a fact, that defendant's testimony was inherently impossible and unbelievable and so contradictory as not to amount to substantial evidence, furnishes no reason for saying that the jury should have believed the plaintiff's evidence.The jury passed upon the credibility of the evidence and returned a verdict in favor of defendant.The law is too well settled to need citation of authority, that it was within the exclusive province of the trial court to determine whether or not this verdict was against the weight of the evidence.One of the grounds set up in plaintiff's motion for new trial was that the verdict was against the weight of the evidence.The trial court determined that question when it overruled the motion and refused to grant plaintiff a new trial.We are powerless to interfere with that ruling, because we have no authority to pass upon the weight of the evidence.[City of St. Louis v. Worthington, 19 S.W. (2d) 1066, 1067;Sofian v. Douglas, 23 S.W. (2d) 126, 129;Hunt v. Gillerman Iron & Metal Co., 327 Mo. 887.]The rule determinative of the question here presented was well stated by this court in Schroeder v. C. & A. Ry. Co., 108 Mo. 322, 326, 18 S.W. 1094, as follows:

"The defendant offered no testimony; so that the plaintiff's was uncontradicted; but from this it is not to be assumed that that evidence is to be accepted as true.

"The allegations of plaintiff's cause of action were denied by the answer.Thus was imposed on plaintiff the burden of proving the facts necessary to a verdict in his favor.Upon his submission of proofs to support the issue, on his part, the defendant was entitled to have the triers of fact determine its credibility, though defendant may have tendered nothing to contradict it.Should a verdict be returned against the evidence given in such circumstances, it might furnish a matter for the corrective action of the trial court in a proper case; but not for the exercise of the revisory power of an appellate court reviewing questions of law only."

We recognize that inherently impossible and unbelievable evidence has no place in any case and should never be submitted to the jury by instructions as a basis for a verdict in favor of either party.We also recognize that such evidence, if left in a case, although not submitted to the jury by instructions, might prejudice or mislead the jury, but no such questions are in this case.Defendant's evidence was not submitted to the jury by instructions.No instructions...