Coalmer v. Barrett
| Decision Date | 26 January 1907 |
| Citation | 56 S.E. 385,61 W.Va. 237 |
| Parties | COALMER v. BARRETT. |
| Court | West Virginia Supreme Court |
Submitted March 6, 1906.
Syllabus by the Court.
In an action at law, a verdict of a jury, which is without sufficient evidence to support it or plainly against the decided weight and preponderance of conflicting evidence should upon proper motion be set aside and a new trial awarded.
To justify setting aside a verdict on the ground that it is plainly against the decided weight and preponderance of conflicting evidence, the weight and preponderance of evidence against the verdict must be decided in the sense of pronounced. The verdict must be palpably unjust. A doubtful case, a slight weight and preponderance of evidence against the verdict, is not a sufficient cause for setting it aside.
Notwithstanding the rule stated above, a verdict depending solely on conflicting oral evidence given by the witnesses in the presence of the jury will not be set aside on the ground alone that the verdict is plainly against the decided weight and preponderance of such evidence, because to do so would invade the province of the jury in determining the credibility of such witnesses.
To justify setting aside a verdict in a case involving conflicting oral evidence, on the ground alone that the verdict is plainly against the decided weight and preponderance of conflicting evidence, the court must go beyond the question of the credibility of the witnesses who gave conflicting oral evidence in the presence of the jury and find documentary evidence, uncontroverted evidence facts, or circumstances, or some of these, which, when considered with such conflicting oral evidence, plainly constitute a decided weight and preponderance of evidence against the verdict.
Upon a motion to set aside a verdict on the ground that it is contrary to the evidence, or plainly against the decided weight and preponderance of conflicting evidence, the trial court in the first instance, and this court upon review under section 9, c. 131, Code 1887, as amended and re-enacted by chapter 100, p. 304, Acts 1891 [Code 1906, § 3979], will consider all proper evidence, facts, and circumstances in the case, whether conflicting or not.
This court will not reverse the action of the trial court in setting aside a verdict and awarding a new trial, unless such action is plainly erroneous.
Error to Circuit Court, Raleigh County.
Action by W. A. Coalmer against R. E. Barrett, brought in justice court. On appeal to the circuit court, a verdict for defendant was set aside and a new trial awarded, and defendant brings error. Affirmed.
Charles E. Hogg, for plaintiff in error.
Vinson & Thompson and Lilly & Shrewsberry, for defendant in error.
COX, P.
This action was brought before a justice of Raleigh county by W A. Coalmer against R. E. Barrett to recover the possession of one bay mare, of the value of $125, one saddle, of the value of $15, one bridle, of the value of $1, and one saddle blanket, of the value of $1, and $100 damages for the detention thereof. The judgment of the justice was for the plaintiff. Upon appeal to the circuit court there was a trial by jury, and a verdict for defendant, which, upon motion of plaintiff, was set aside and a new trial awarded. To this order setting aside the verdict and awarding a new trial the defendant obtained a writ of error from this court.
This action involves the ownership of personal property. The sole ground advanced for setting aside the verdict was that it was contrary to the law and evidence. The sole complaint here is that the lower court erred in setting aside the verdict and in not entering judgment for the defendant. By an agreement made a part of the record it was admitted that the plaintiff was the owner of the property in controversy up to the 28th of July, 1902. Previous to that date, about the 1st of June, 1902, R. B. Waugh, a dealer in musical instruments, termed in the evidence "a music dealer," obtained from the plaintiff, then a liveryman at Logan Courthouse, the mare, saddle, bridle and blanket in controversy, and proceeded therewith on a trip through a section of this state. On or about the 4th day of July, 1902, in Raleigh county, Waugh sold, or attempted to sell, and delivered the property in controversy to the defendant at the price of $175. In order for Waugh to have passed ownership of the property, he must have been the owner of such property. The defendant contended that Waugh became the owner of the property, and passed ownership thereof to him. To support this contention he offered Waugh as a witness, who testified that, previous to obtaining the mare and other property, the plaintiff priced the mare to him at $125; that at the time defendant obtained her she was lame and had a sore back; and that plaintiff then said, "Bert (meaning Waugh), I don't know how about this whether you can ride her or not;" that plaintiff again priced her at $125, and said, "You cure up this back and take her at 75 cents a day straight time, or any time you want her send me $125 and the mare's yours." Witness further said that the price of $125 was to include the saddle and bridle, and that, with this understanding, he accepted the property and proceeded upon his journey.
The witness also claimed afterwards to have accepted the alternative proposition or offer to sell at $125, not expressly, but impliedly. If there was no continuing offer to sell, or option, there could have been no acceptance thereof. The minds of the parties did not meet in contract upon the terms of a previous offer or option, if in fact no such offer or option ever existed. If there was no contract of purchase, there was no purchase by Waugh, and his sale to defendant did not pass ownership of the property to him.
We have carefully considered all of the evidence, and find that it is materially conflicting as to the existence of such offer or option. What, then, is our duty? By what rules are we governed? Numerous decisions of this Court construing section 9, c. 131, Code 1887, as amended and re-enacted by chapter 100, p. 304, Acts 1891 [Code 1906, § 3979], have declared that this section as it now exists wrought a change in the rule governing this court as to the consideration of conflicting evidence upon a writ of error or supersedeas in an action at law. Martin v. Thayer, 37 W.Va. 38, 16 S.E. 489; Johnson v. Burns, 39 W.Va. 658, 20 S.E. 686; Yeager v. Bluefield, 40 W.Va. 484, 21 S.E. 752; State v. Zeigler, 40 W.Va. 593, 21 S.E. 763; Akers v. De Witt, 41 W.Va. 229, 23 S.E. 669; Davidson v. Railway Co., 41 W.Va. 407, 23 S.E. 593; Gilmer v. Sidenstricker, 42 W.Va. 52, 24 S.E. 566; Limer v. Traders' Co., 44 W.Va. 175, 28 S.E. 730; Laidley v. County Court, 44 W.Va. 566, 30 S.E. 109; Dearing & Co. v. Coberly, 44 W.Va. 606, 29 S.E. 512; Barrett v. Raleigh Coal Co., 55 W.Va. 395, 47 S.E. 154; Buck v. Newberry, 55 W.Va. 681, 47 S.E. 889; State v. Sullivan, 55 W.Va. 597, 47 S.E. 267; Fulton v. Crosby-Beckley Co., 57 W.Va. 97, 49 S.E. 1012. Said new section 9 provides that the trial court shall certify all the evidence, and that all the evidence so certified shall be considered by the Court of Appeals. Upon review of the action of the trial court upon a motion to set aside a verdict, we no longer, as formerly, reject the oral evidence of the exceptor (the party moving to set aside the verdict) in conflict with the evidence of his adversary. We consider all proper evidence, and determine where the weight and preponderance is, if the evidence is conflicting, and whether or not that weight and preponderance is decided within the meaning of the law. If the verdict is found to be without sufficient evidence to support it, or plainly against the decided weight and preponderance of conflicting evidence, it will be set aside. See cases before cited. Not only does this rule, announced as the true construction of said new section 9, obtain in this court, but by implication extends to the circuit courts. Laidley v. County Court, 44 W.Va. 566, 30 S.E. 109. This rule dealing with the weight and preponderance of conflicting evidence must of necessity extend to a demurrer to evidence, a motion to exclude evidence and to direct a verdict after all the evidence is in, and to a case where it is sought to reverse a judgment of the court which heard the case in lieu of a jury. Upon principle, the same rule must govern in each of these situations. This court has substantially so held. Barrett v. Coal Co., 55 W.Va. 395, 47 S.E. 154; Hysell v. Sterling Coal & Mfg. Co., 46 W.Va. 158, 33 S.E. 95. There is no good reason why the case should not be taken away from a jury by the judgment of the court, upon a demurrer to evidence or upon a motion to direct a verdict, if a verdict contrary to such judgment must be set aside by the same court. It may be remarked in this connection that a motion to exclude evidence and to direct a verdict, in a case where the admissible evidence is conflicting, is not technically correct, because under said new section 9 conflicting evidence cannot be excluded, but must be considered. However, as the motion is in part to direct a verdict, it answers the purpose, notwithstanding the inaccuracy of the expression "to exclude the evidence."
In dealing with the weight and preponderance of conflicting evidence, upon a motion to set aside a verdict, under the new rule, how shall we proceed? The verdict must be plainly against the decided weight and preponderance of the evidence before it will be set aside. The weight and preponderance must be decided, in the sense of pronounced. As said by Judge Brannon in Gilmer v. Sidenstricker, the call to set aside "must be very loud and plain." The verdict must be palpably unjust. A doubtful case, a slight weight...
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