McIlroy v. Arkansas Valley Trust Company

• Decision Date: 06 November 1911
• Citation: 141 S.W. 196,100 Ark. 596
• Parties: McILROY v. ARKANSAS VALLEY TRUST COMPANY
• Court: Arkansas Supreme Court

141 S.W. 196

100 Ark. 596

McILROY v. ARKANSAS VALLEY TRUST COMPANY

Supreme Court of Arkansas

November 6, 1911

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

Motion for a new trial granted.

Miles Pryor & Miles, for appellant.

The principles of law announced upon a former appeal of a case are binding and stand as the law of the case on a second trial; and, upon a second appeal, if the testimony is substantially the same as at the first trial, the former decision upon all questions of law involved in the case must be followed. 92 Ark. 557, 558. That is this case. There is no substantial change in the evidence on the second trial from that adduced at the first trial, with this difference however, that appellant's case has been materially strengthened by additional evidence, and that on the issue which this court on former appeal held should be submitted to the jury under proper instructions.

The trial court can not take away from the jury its prerogative to determine disputed questions of fact, and it will be reversed for directing a verdict in favor of one party where there is any substantial evidence to support a verdict in favor of the other.

An order granting a new trial will be reversed where it was granted through a misapprehension of the law. 87 Cal. 425. It will be reversed, also, where granted on a ground that was not discretionary. 63 Iowa 345.

Read & McDonough, for appellees.

The propositions contended for by appellant that there was sufficient evidence to support the verdict, and that it was reversible error for the trial court to direct a verdict for one party where there was substantial evidence to warrant a verdict for the other party, are not involved here.

If there was a substantial conflict in the evidence upon any material point (and there was such conflict upon every material point), the trial court had the right to determine the question of preponderance, and this court will not reverse its ruling. 98 Ark. 334; 98 Ark. 304; 94 Ark. 566; 92 Mo. 265; 52 Mo.App. 342; 41 S.W. 454, 458; 118 Mo. 463; 97 P 52; 112 P. 311; 104 P. 1014; 64 S.E. 435; 126 S.W. 1030 Id. 966; 110 P. 89; 133 S.W. 110; 115 P. 175; 128 N.W. 132; 114 P. 778.

It is evident that the trial court believed that the preponderance of the evidence was in favor of the defendants, and so found. If such was the case, the motion could have been sustained upon either of the grounds mentioned by the court, and the order would not be reversed unless it should appear that the trial court abused its discretion. 104 Cal. 81 and cases cited; 94 N.W. 765; 57 P. 634; 17 Kan. 173; 29 Cyc. 818, 819; 16 S.C. 14; 47 S.E. 978, 68 S.C. 523.

McCULLOCH C. J. WOOD and HART, JJ., dissent.

OPINION

McCULLOCH, C. J.

This is the second appeal in this case, the court having formerly reversed a judgment in favor of the plaintiff on account of erroneous instructions given. The facts are fully stated in the former opinion. Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S.W. 816. In remanding the case the court made this statement as to the issues upon which the case should go to the jury in the next trial:

"There was testimony adduced on the part of plaintiff tending to prove that Berg, when he left the place of the fire, requested or directed plaintiff to watch and guard it, which she did; and that, while so guarding the fire, her clothes were ignited. Under such circumstances it then became a question of fact for the jury to determine, after taking into consideration her age, intelligence and capacity, as to whether or not she was guilty of contributory negligence. If she was not guilty of contributory negligence, then defendants were liable if Berg directed her to watch and guard the fire without giving her proper warning of the danger therefrom, and she was injured thereby."

The plaintiff amended the complaint in order to bring it within the terms of this statement of the law by setting forth an allegation that Berg "negligently requested or directed plaintiff to watch and guard it (the fire) without instructing the plaintiff as to its dangerous character, which she did, and that while so guarding the fire her clothes became ignited, etc."

The case was tried before a jury upon conflicting testimony as to this issue, and resulted in another verdict in favor of the plaintiff. The defendant filed a motion for new trial, setting up numerous grounds therefor, among others, "First, that the verdict is contrary to law; and, second, that the evidence is not sufficient to support the verdict." The court granted a new trial on the grounds above mentioned. The bill of exceptions further recites that "the court, in passing upon the motion for a new trial, stated that, upon a new trial being had, if the evidence was the same as had been adduced in this trial, he would instruct the jury to return a verdict for the defendants." Plaintiff thereupon prayed an appeal to the Supreme Court from the order granting a new trial, and caused to be entered of record an agreement and consent, as provided by statute, that "if the Supreme Court shall determine that no error was committed in granting a new trial they shall render a judgment absolute upon the right of the appellant."

The court has in...