State ex rel. Griswold v. Thayer

• Decision Date: 19 March 1878
• Parties: STATE OF MISSOURI, EX REL. GRISWOLD, Appellant, v. AMOS M. THAYER, JUDGE, Respondent.
• Court: Missouri Court of Appeals

5 Mo.App. 420

STATE OF MISSOURI, EX REL. GRISWOLD, Appellant,

v.AMOS M. THAYER, JUDGE, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 19, 1878.

1. A petition for a mandamus alleged that the jury were instructed that, under the pleadings and evidence, the plaintiff was not entitled to recover; that the plaintiff refusing to take a nonsuit, the cause was submitted to the jury, who returned a verdict in due form for plaintiff, which the court refused to receive, directing the jury to retire and return a verdict for defendant, which was done, and upon which judgment was entered. Held, that the petition sets forth no sufficient ground for issuing a writ to compel the trial judge to receive and record the first verdict.

2. Where an instruction in the nature of a demurrer to the evidence is given, the facts are thereby taken from the jury; there is nothing for them to pass upon; their action is merely formal; and they are bound to render the verdict as directed, the judge alone being responsible for it.

PETITION for mandamus.

Demurrer sustained.

LEVERETT BELL and M. W. HUFF, for relator: The plaintiff may refuse to suffer a nonsuit, and insist upon his case being submitted to the jury; and if the jury disregard the law, or the instruction of the court, the court may enforce its opinion by awarding a new trial.-- Welles v. Gaty, 8 Mo. 681; Clark v. Steamboat, etc., 9 Mo. 146; Perrin v. Wilson, 9 Mo. 148; Clark v. Railroad Co., 36 Mo. 216. Mandamus is the proper remedy here. The plaintiff is entitled to judgment upon the verdict as of the day it was returned into court. An appeal or writ of error will not meet the case.-- The State v. Rombauer, 44 Mo. 590; The State v. Knight, 46 Mo. 83; Menkens v. Watson, 9 Kan. 668; Haight v. Turner, 2 Johns. 371; The State ex rel. v. Lafayette County Court, 41 Mo. 559.

WELLS H. BLODGETT, for respondent, cited: Boland v. Railroad Co., 36 Mo. 484; Blackley v. Sheldon, 7 Johns. 32; Mansfield v. Fuller, 50 Mo. 338; Ward v. County Court, 50 Mo. 401.

HAYDEN, J., delivered the opinion of the court.

This is a petition for mandamus against one of the judges of the St. Louis Circuit Court. The facts are, as averred, that the relator brought a suit in that court against the St. Louis, Kansas City, and Northern Railway Company, to recover $10,000 damages; that after proper proceedings, the case came on for trial before the respondent; that upon such trial, the relator concluded his testimony before the court and a jury empanelled in the case, and that the respondent instructed the jury in writing, that, under the pleadings and evidence, the plaintiff in the case was not entitled to recover; that thereupon, the relator herein refusing to take a nonsuit, the cause was submitted to the jury, “and the said jury retired to consider of their verdict;” that on the same day, the jury returned into court the following verdict: “We, the jury, find for plaintiff, and assess his damages at the sum of forty-three hundred dollars;” that though this verdict was in due form, and duly tendered as the verdict of the jury in due form, in open court, the respondent refused to receive it, and ordered the jury to retire, instructing them that it was their duty as jurors to return a verdict for the defendant in the case; that accordingly the jury retired to their room, and returned a verdict for the defendant, upon which judgment was rendered for the defendant. The prayer is, that the respondent be directed to receive and record the first verdict. The questions arise on a demurrer presented to the petition.

It is contended by the relator that the verdict first presented by the jury was formal, was responsive to the issues, and that, if contrary to the instruction of the court, the court should have set aside the verdict upon a motion for a new trial. But the question involved is not whether the court could have set aside the verdict upon a motion for a new trial, but as to the proper practice in case of an instruction offered which is in the nature of a demurrer to evidence. The practice of demurring to evidence by such an instruction as that here offered is too well established in this State to be shaken, and has been sustained by repeated adjudications of the Supreme Court and of this court. To take one instance as an example of many; in Holman v. Railroad Company, 62 Mo. 562, the Supreme Court said: “Upon the case made, it was the duty of the court to declare, as a matter of law, that the plaintiff was not entitled to recover.” It would seem that, if in such cases this is a duty and obligation devolving upon the court, the court ought to have power to do that which is implied in the duty. To prescribe a duty and enjoin performance of it upon the trial court, and then to hold that the trial court is without the means to perform the duty thus prescribed, would indeed be extraordinary doctrine. If it is the duty of the trial court, as a matter of law, to declare, in a given class of cases, that the plaintiff is not entitled to recover, it cannot be the duty of the same court to commit the case to the jury, and allow them to say that the plaintiff shall recover. To be consistent and reasonable, the law should dispense with the useless formality thus prescribed, and should save the judge and the administration of justice from the contempt which follows the ineffectual effort to exercise authority. It is to be presumed that when the courts declare the law, as it is declared in the words above quoted, a reasonable meaning is to be attached to the words.

The nature of a demurrer to evidence is well settled in law. Upon such a demurrer being presented and sustained by the court, the jury has nothing to do with the facts. It is unnecessary to here cite and review the authorities upon this point, as the more important of these, both English and American, were cited and reviewed by this court in the case of Nolan v. Shickle, 3 Mo. App. 300. It is sufficient to say that the well-established doctrine is, that where a demurrer is presented to evidence, the party presenting the demurrer admits not only the facts, but all conclusions that can be legally and legitimately drawn from the facts in evidence; that, this being so, there are no facts for the jury to pass upon; and that the only question is then, as it is upon an agreed case or a special verdict, as to the legal effect of ascertained facts. To use the language of Lord Chief Justice Eyre, delivering the opinion of all the judges to the House of Lords: “But if the party wishes to withdraw from the jury the application of the law to the fact, and all consideration of what the law is upon the fact, he then demurs in law upon the evidence; and the precise operation of that demurrer is to take from the jury and to refer to the judge the application of the law to the fact. * * * The matter of fact being confessed, the case is ripe for judgment in matter of law upon the evidence, and may then be properly withdrawn from the jury; and, being entered on the record, will remain for the decision of the judges.” Gibson v. Hunter, 2 H. Black. 187, 206.

In Parks v. Ross, 11 How. 362, Mr. Justice Grier, delivering the opinion of the court, said: “It is undoubtedly the peculiar province of the jury to find all matters of fact, and of the court to decide all questions of law arising thereon. But a jury has no right to assume the truth of any material fact, without some evidence legally sufficient to establish it. It is, therefore, error in the court to instruct the jury that they may find a material fact, of which there is no evidence from which it may be legally inferred. Hence the practice of granting an instruction like the present,...