Gillespie v. Doty

• Decision Date: 01 June 1931
• Docket Number: 29087
• Court: Mississippi Supreme Court
• Parties: GILLESPIE v. DOTY

135 So. 211

160 Miss. 684

GILLESPIE v. DOTY

No. 29087

Supreme Court of Mississippi

June 1, 1931

Division A

1. NEW TRIAL.

Trial judge should not grant new trial on facts within his personal knowledge, but which do not appear in evidence.

2. APPEAL AND ERROR.

Verdict of jury, based on conflicting evidence cannot be disturbed on appeal, on ground that it was not supported by evidence.

3. NEW TRIAL.,

In action for personal injuries sustained in automobile collision, verdict for defendant held not contrary to evidence, precluding new trial.

4. APPEAL AND ERROR.

In suit for personal injuries sustained in automobile collision testimony of witness regarding position of automobiles and marks on ground held harmless, in view of other testimony.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Le Flore county, HON. S. F. DAVIS Judge.

Suit by W. J. Doty against Sumter Gillespie, etc. From a judgment for the plaintiff on a second trial after a judgment for the defendant was set aside and a new trial granted, the defendant appeals. Reversed, and cause remanded in accordance with opinion.

Reversed and remanded.

Gardner, Odom & Gardner, and P. S. Montjoy, Jr., all of Greenwood, for appellant.

Plaintiff submitted his case to the jury with full knowledge of the alleged misconduct of the jury and thereby waived all right to object.

20 R. C. L., 251-252, par. 34.

A mere expression of opinion by a juror as to the merits of the case, based only on the testimony that has been given and not indicating any improper bias or prejudice against the unsuccessful party, is not such misconduct as will be ground for a new trial. An objection to the misconduct of a juror in expressing an opinion or prejudice during the trial, if known to the party at the time of its occurrence and not made the subject of a motion to the court, is waived, as the party will not be permitted to speculate upon the chances of a verdict.

20 R. C. L., page 255; 12 Ency. of Pl. & Pr., page 554; 46 C. J., pages 159-160; Richardson v. Foster, 73 Miss. 12, 18 So. 573, 55 A. S. R. 483; Crigler v. Parker, 125 So. 111; Scruggs v. State, 130 Miss. 49, 93 So. 482; Jones v. Town of Mattinsville, 111 Va. 103, 68 S.E. 256.

A party who learns of the misconduct of a juror before the jury have retired must call the attention of the court thereto at the time, and where he remains silent until a verdict has been read the misconduct is waived and does not justify a setting aside of the verdict.

22 Am. & Eng. Ann. Cas., page 222; Richardson v. Foster, 73 Miss. 12, 18 So. 573, 55 A. S. R. 483.

Where a new trial has been granted at law in a case in which the first verdict was correct and a bill of exceptions has been taken to the grant of the new trial, and a second trial is had, and a verdict adverse to the second is rendered, this court will set aside the last verdict, and uphold the first.

Moore v. Ayres, 3 S. & M. 310; Edmunds v. Mister, 58 Miss. 765; Evans v. Wenger, 139 Miss. 53, 103 So. 481; Railroad Co. v. Doyle, 60 Miss. 979; Timberlake v. Shelton, 72 So. 786; Ennis v. Y. & M. V. R. R. Co., 118 Miss. 509, 79 So. 73.

While the inherent right exists to grant a new trial, the grounds for doing so should be made to appear in the record. If the court does not do this, the party in whose favor the ruling is made, in protection of the record, may insist that the ground of the ruling be entered.

Hensley v. Davidson Bros. Co., 135 Iowa 106, 14 Am. & Eng. Cas., Ann. 64.

P. P. Lindholm, of Lexington, and Osborn & Witty, of Greenwood, for appellee.

It is the inescapable duty of the trial judge not only to pass on every ground of a motion for a new trial, but to award relief therein, when in his opinion relief should be granted. St. Louis & S. F. R. R. Co. v. Bridges, 156 Miss. 206, 125 So. 423.

Trial courts should not fall into the practice of regarding motions for new trials as mere matters of form. The means of doing justice are more extended in those courts, and further errors should be corrected by the court in which they were committed.

20 R. C. L. 227, section 12.

Our judges are learned in the law and what they do is presumed to be correct.

Goodyear Yellow Pine Co. v. Lumpkin, 130 So. 745.

Although there seems to be some conflict of opinion on the question, the great weight of authority sustains the view that by virtue of inherent power of the trial court it has authority on its own motion or for causes other than those assigned in a motion, to set aside a verdict and grant a new trial, unless such power of the court has been limited by statute, and the appellate court will not interfere except in a clear case of abuse.

20 R. C. L., page 300, par. 81; 46 C. J. 283.

The rule that the action of the trial court upon the motion for a new trial is to be favorably considered on appeal and supported unless manifest error appears, is peculiarly applicable where a new trial has been granted since in such cases the rights of the parties are not finally settled as they are where a new trial is refused.

Smith v. Walsh, 63 Miss. 584; Dorr v. Watson, 28 Miss. 383.

The granting of a new trial rests in a great measure in the sound discretion of the court below to be exercised under all the circumstances of the case with reference to settled legal rules as well as the justice of the particular case.

Dorr v. Watson, 28 Miss. 383.

In the absence of statute, a court of general jurisdiction has inherent power, in the exercise of its discretion, to order on its own motion a new trial of a civil action tried before it, even though an application therefor on other grounds has been made by a party and is pending; and it has been said to be the duty of the court to set aside a verdict ex mero motu if, in its judgment, the verdict is against the weight of the evidence, or if reversible error has been committed, or if the trial has not been fair.

46 Corpus Juris. 283; 20 R. C. L. 300; 14 Enc. if Pl. & Pr. 932.

The evidence which was introduced on the motion for the new trial, taken in connection with what the trial judge himself observed and knew, was sufficient for the award of the new trial.

It is equally well settled that judges may ex officio grant new trials within the same delays allowed to parties to move therefor.

Cartwright v. New Orleans Railway & Light Co., 59 So. 124; De Vall v. De Vall, 40 L. R. A. (N. S.) 291; Hensley v. Davidson Bros., 112 N.H. 227; 14 Ann. Cas. 62, 10 La. 205.

Where the specific grounds upon which the order for a new trial was made do not appear, the appellate court will presume that the court acted within its discretionary power.

Eggen v. Fox, 124 Wis. 534, 102 N.W. 1054.

Wherever the court has seen of themselves, or on the suggestion of counsel, that the defendants have been improperly convicted, they always have interposed to prevent judgment being passed on an innocent man.

Rex v. Morris, 2 Burr. 1189.

It would obviously be unsafe if parties to litigation without restriction, were allowed to support their claims by proving their own statements made out of court. It is accordingly a general rule of broad application that the declarations of a party made out of court and in his own favor are not admissible in his behalf.

2 Jones Commentaries on Evidence (2 Ed.), section 895, page 1636.

Where it is impossible to determine the effect of inadmissible testimony or effect of erroneous instruction, the Supreme Court is without rightful power to restore the original verdict and judgment where trial court set aside verdict, also assuming no other error in the first trial.

Gill v. Dantzler Lumber Co., 153 Miss. 568.

J. G. Holmes, of Yazoo City, for appellee.

Generally speaking a motion or other application for a new trial is addressed to the sound discretion of the trial court and the court, may exercise considerable discretion in passing on the application, etc.

46 C. J., page 406; Dulaney v. Rankin, 47 Miss. 391.

J. G. Holmes, of Yazoo City, P. P. Lindholm, of Lexington, and Osborn & Witty, of Greenwood, for appellee.

In passing upon the motion for a new trial the trial judge did not act upon his private knowledge of facts gained outside of the court room, and independently of the trial and proceedings had before him, but acted upon those matters which actually took place in the actual presence of the court and as a part of the proceedings before him.

There are so many matters occurring in the course and progress of a judicial trial that in the opinion of the judge who tried the case may affect the merits and justice of the cause to the substantial injury of one of the parties, that of necessity a large discretion should be accorded to the trial court in granting a new trial to the end that the administration of justice may be facilitated; and the appellate court will not reverse an order granting a new trial unless it clearly appears that a judicial discretion has been abused in its exercise, resulting in injustice, or that the law has been violated.

The rule which should govern a court in the exercise of this power should be a fair view of the justice of the particular case, the character of the conflicting testimony, and the surrounding circumstances; and wherever it appears to the court that there is difficulty in reconciling the verdict with the justice of the case and the manifest weight of evidence there, the court should not, from too great respect for this wise and venerable maxim, withhold its power.

Carney v. Stringfellow, 74 So. 866.

If this court remands the case for rehearing on the original motion for a new trial, it should be remanded for rehearing on the whole motion, and upon all of the grounds therein alleged and to restrict the hearing, as the original ...