Morris v. Barnes

• Decision Date: 28 February 1865
• Parties: MATILDA MORRIS, Respondent, v. JAMES BARNES, ADM'R OF JOHN BARNES, dec'd, Appellant.
• Court: Missouri Supreme Court

35 Mo. 412

MATILDA MORRIS, Respondent,

v.JAMES BARNES, ADM'R OF JOHN BARNES, dec'd, Appellant.

Supreme Court of Missouri.

February Term, 1865.

Appeal from Livingston Circuit Court.

The facts are sufficiently stated in the opinion.

R. D. Ray, for appellant.

The verdict of the jury was clearly against both the law and evidence in the cause, and wholly unauthorized by either. (19 Mo. 433; 1 Pars. Contr. 530, § 1; 14 Wend. 209; 5 Cow. 531; 20 Barb. 387; see Stat. Limit., 2 vol. Mo. Stat. 1048, § 3.)

A. M. Woolfolk and S. Turner, for respondent.

DRYDEN, Judge, delivered the opinion of the court.

The instructions given by the Circuit Court put the case to the jury as favorably for the appellant as he could ask. So far then as giving or refusing instructions is concerned, we could find no warrant for interfering with the judgment, but the verdict is, in our view, so glaringly against the evidence, that we are constrained to send the case back for a new trial. In doing this we do not violate the rule this court has long and uniformly acted on; not to interfere with a verdict merely on the ground that it is against the weight of the evidence.

The sense of the rule is that the court will not weigh the testimony with nicely balanced scales and decide upon a bare preponderance of the evidence. But this by no means implies a denial of the power which this court undoubtedly possesses of ordering a new trial, when the Circuit Court refuses to grant one on the sole ground of the verdict being against the evidence. (Hartt v. Leavenworth, 11 Mo. 629.) It is a power, however, that ought to be exercised with great caution, and only in very clear cases.

The proceedings in the case originated in the Probate Court of Livingston county, on the following demand exhibited for allowance against the estate of John Barnes, the appellant's intestate, viz:

“Estate of John Barnes, dec'd, to Matilda Morris, Dr. To 21 years' continued services from the fall of 1863, after allowing full credit for board, clothing, &c., furnished gratis, $1,575. Balance due, $1,575.”

There is no dispute that the plaintiff lived in the family of the defendant's intestate, performing much valuable domestic service, from 1842 till the death of the intestate in 1863, except during an interval of about two years, while the intestate was a widower. The question in the case was as to whether the plaintiff's services were rendered upon an implied contract of hiring (for there was no evidence of any express contract) or as a mere gratuity.

The evidence shows that the plaintiff is a deaf mute; that her parents died in Tennessee in 1842, leaving the plaintiff (then about nineteen years of age) poor and destitute; that John Barnes, the intestate, who was her half brother, living some twenty miles distant, shortly after the death of her parents, took her into his family; that John, while residing in Tennessee, was a poor man, owning neither land nor servants, depending for support of himself and household on the fruits of his daily toil as a mechanic; that in 1846 he moved to Missouri with his family, the plaintiff being of the number, where he resided until his death; that for a period of about two years, from 1851 to 1853, Barnes being a widower suspended house-keeping, and during the interval the plaintiff went and resided with Capt. Barnes, a brother of John and half brother of plaintiff, in the meantime taking with her and caring for the infant child of John. On John's marrying a second time and resuming...