Mueller v. Coffman

• Decision Date: 14 January 1918
• Docket Number: 94
• Citation: 200 S.W. 136,132 Ark. 45
• Parties: MUELLER v. COFFMAN
• Court: Arkansas Supreme Court

200 S.W. 136

132 Ark. 45

MUELLER v. COFFMAN

No. 94

Supreme Court of Arkansas

January 14, 1918

Appeal from Greene Circuit Court, First Division; R. H. Dudley Judge; reversed.

R. P Taylor, for appellant.

1. The verdict is not supported by the evidence. There is no proof of the agreement by which Coffman was discharged from liability and that Mueller became solely liable, or of the delivery to Mueller as collateral security of certain notes and mortgages. 130 Ark. 374. The evidence at least is vague and conjectural. Really the evidence shows that no notes and mortgages were transferred to Mueller. But the jury totally disregarded this evidence. 54 Ark. 214; 117 Id. 483; 118 Id. 349; 34 Id. 632; Ib. 640; 70 Id. 385.

2. Outside of Coffman's evidence there is no testimony to sustain the verdict. Coffman was an atheist and incompetent to testify. Art. 19, § 1; art. 3, § 26, Const.; 7 Report, Calvin's Case, 17; Peake's Report, 11; 1 Atk 21; 7 Conn. 66; Fed. Cases Nos. 17050, 15586; 4 Am. Dec. 179; 2 Har. 37; 17 Ill. 541; 18 Johns (N.Y.) 98; 2 Watts & S. 262; 2 Tenn. 80; 12 Ark. 101; 42 L. R. A. (Ann.) 568; 18 Me. (6 Shep.) 157.

3. The statements of the circuit judge show that the verdict was against the evidence and it should be set aside. 126 Ark 427; 196 S.W. 477.

The appellee, pro se.

1. Appellant agreed to pay the notes--the evidence shows it. The great preponderance is with the appellee. The findings of the jury are in harmony with the evidence and the instruction of the court.

2. The remarks of the judge do not find that the verdict is against the weight of the evidence. There was substantial evidence to support it and the verdict of the jury must be sustained.

3. Coffman was competent to testify under the Constitution, and his testimony is supported by Breckenridge and Newberry.

SMITH J. HART, J., dissents.

OPINION

SMITH, J.

The parties to this litigation were among the principal stockholders in the Breckenridge Mercantile Company, a corporation doing business at Paragould, Arkansas, but which changed its name to the Mueller Mercantile Company, under which name it continued in business until its failure in 1911. The corporation had become heavily involved and its paper was maturing and the parties to this litigation had jointly endorsed the two notes herein sued on. This cause was tried upon the theory that Coffman was insisting that the mercantile company pay the notes; while Mueller insisted that the company could not spare the money from its business to do so, and urged that the payment of the notes be postponed, and agreed with Coffman that if he would consent to the extension of the notes, he (Mueller) would become the payer thereof as between himself and Coffman. This Mueller denied. The notes were not paid when they fell due, and payment was enforced by suit against the endorsers, whereupon Coffman brought this suit against Mueller to recover the sum paid by him in satisfaction of the judgment against him on account of the notes, and he recovered judgment in the court below, and this appeal has been duly prosecuted.

It is first insisted that the verdict of the jury is unsupported by the evidence. But this position can not be sustained, because Coffman testified unequivocally to the existence of the agreement stated above, and we need not, therefore, consider how greatly this verdict is contrary to the preponderance of the evidence, as it has, as a basis, evidence legally sufficient to sustain it.

It is argued that the verdict is based upon the testimony of Coffman alone, and that he was an incompetent witness, because of his atheistic belief. Coffman admitted the authorship of some verse, of more or less ambiguous meaning but of atheistic trend, which was published in the local paper, and his examination by opposing counsel indicated the absence of a belief in "the being of a God," but, in response to questions by the court he gave the following answers:

"The Court: Let me ask the witness a question, Mr. Taylor. Do you believe in an omnipotent Supreme Being, who rewards one or punishes him according to his sins committed while here?"

"A. Yes, sir; in a Power; I believe we are punished according to our acts.

"Q. And that that power and disposition to punish comes from an omnipotent Supreme Being?

"A. Yes, sir.

"The Court: I think, Mr. Taylor, under this showing that the witness is competent. Let the objection to his competency be overruled. Recall the jury, Mr. Sheriff."

The introduction of the verse was competent, for, in the case of Farrell v. State, 111 Ark. 180, 163 S.W. 768, we said:

"The opinion and belief of men can be known only by what they have said or written, and their declarations, either verbal or written, are the proper evidence of their opinion."

But the witness expressed the belief that we are punished according to our acts and that the power and disposition to punish comes from an Omnipotent Supreme Being. One possessing this belief is not incompetent under section 1 of article 19 of the Constitution of the State, which provides that...