Faulkner v. Middleton

• Decision Date: 11 September 1939
• Docket Number: 33688.
• Citation: 190 So. 910,186 Miss. 355
• Court: Mississippi Supreme Court
• Parties: FAULKNER v. MIDDLETON.

190 So. 910

186 Miss. 355

FAULKNER v. MIDDLETON.

No. 33688.

Supreme Court of Mississippi, Division A.

September 11, 1939

Appeal from Circuit Court, Warren County; R. B. Anderson, Judge.

On suggestion of error.

Suggestion of error overruled.

For prior opinion, see 188 So. 565.

R. R Norquist, of Yazoo City, and R. M. Kelly, of Vicksburg, for appellant.

Vollor & Teller and J. D. Thames, all of Vicksburg, for appellee.

GRIFFITH, Justice.

The argument is again earnestly made that the verdict is against the great or overwhelming weight of the evidence, and it is stressed that only two witnesses, one of them interested testified in support of the verdict, while twelve other witnesses were called by appellant, and that most of these witnesses swore in positive contradiction of some of the material parts of appellee's version.

Many cases are cited by appellant which affirm the power and duty of the court to set aside verdicts when manifestly against the overwhelming weight of the evidence. That rule has prevailed ever since the establishment of the constitutional judicial system in this state, and existed at the common law. Universal, etc., Co. v. Taylor, 178 Miss. 143, 149 172 So. 756. In fact, in one of the earlier cases, Sims v. McIntyre, 8 Smedes & M., Miss., 324, 327, it was phrased so strongly as to say that if the jury has " found palpably against the preponderance of evidence" a new trial will be allowed. And when, in full view of the previously established rule, Section 31, Constitution 1890 providing the right of trial by jury was ordained in the precise language of previous constitutions, it carried with it the stated power and duty as a part of that section as fully as if therein written in so many words. Drummond v. State, Miss., 185 So. 207, 210.

The Court has never attempted to prescribe any elaborate formula adequate to meet all cases, as to when a verdict will be considered against or contrary to the great or overwhelming weight of the evidence. Obviously it would be as nearly impossible to do so as to attempt to define a reasonable doubt-not to mention other familiar phrases in daily use in the law. The expressions on the point have usually been as, for instance, in Teche Lines, Inc., v. Bounds, 182 Miss. 638, 652, 179 So. 747, 751, that a verdict will be set aside " when, but only when, clearly or manifestly against all reasonable probability; " or as said in Beard v. Williams, 172 Miss. 880, 884, 161 So. 750, 751, when the Court is " convinced, from the evidence, that the jury has been partial or prejudiced, or has not responded to reason upon the evidence produced." Mindful that it is a duty not...