Universal Truck Loading Co. v. Taylor

• Decision Date: 01 March 1937
• Docket Number: 32359
• Court: Mississippi Supreme Court
• Parties: UNIVERSAL TRUCK LOADING Co. v. TAYLOR. et al

172 So. 756

178 Miss. 143

UNIVERSAL TRUCK LOADING Co. v. TAYLOR. et al

No. 32359

Supreme Court of Mississippi

March 1, 1937

Division B

1. APPEAL AND ERROR.

Where case is reversed on ground that verdict is contrary to overwhelming weight of evidence and case is sent back for new trial trial court is not bound in the new trial by judgment of Supreme Court on weight of evidence, and jury can find another verdict on the same evidence, if, in their judgment, it is proper to do so (Code 1930, sec. 592).

2. APPEAL AND ERROR.

Where case is reversed for insufficiency of evidence to support verdict and is sent back for new trial and jury finds another verdict on the same evidence, Supreme Court can pass on sufficiency of evidence in view of fact that two juries have considered it as sufficient to sustain a verdict, and can set aside second verdict for insufficiency of evidence and remand case for further trial (Code 1930, sec. 592).

3. APPEAL AND ERROR.

Verdict of third jury, after two new trials, on evidence which Supreme Court has twice found insufficient, is binding on Supreme Court, which must then render judgment on the verdict (Code 1930, sec. 592).

4. NEW TRIAL.

Court has power to review evidence and set aside verdict on ground that evidence is against overwhelming weight of testimony.

5 JURY.

"Jury trial" is not merely a trial by twelve men, but by twelve men selected by law, with judge who passes on many legal questions and has limited supervision over trial.

6. NEW TRIAL.

Court's power to set aside verdict because of overwhelming weight of evidence is given by law to prevent bias, prejudice, and corruption from entering into administration of justice and for protection of litigants, and is not to be exercised unless judge is strongly convinced of its necessity from consideration of all matters contained in the record.

7. NEW TRIAL.

Judge cannot set aside verdict on ground that evidence is against overwhelming weight of testimony merely because he would have decided the matter differently, but he must be convinced from the whole of the evidence and facts contained in the record that trial has not been fair and impartial.

8 TRIAL.

Conflicts in testimony and veracity of witnesses are for determination of jury, and not the judge.

9. APPEAL AND ERROR.

Where case was remanded for new trial on ground of insufficiency of evidence to support verdict, verdict of second jury in favor of same litigant would be entitled to fair consideration by Supreme Court hearing second appeal, even if jury acted on same evidence that was before Supreme Court on first appeal (Code 1930, sec. 592).

10. AUTOMOBILES.

Evidence held sufficient to permit wife and children to recover for death of occupant of truck who was killed in collision with approaching truck on or at concrete bridge which was narrower than highway.

11. NEW TRIAL.

While judges have power when convinced that judgment is result of bias, prejudice, passion, or corruption, to set it aside and grant new trial before another jury, question is for ultimate decision of jury, where there is conflict in evidence.

12. APPEAL AND ERROR.

Whenever there is substantial proof for one party and jury finds for such party, verdict should stand, although more witnesses testified for opposite party.

13. NEW TRIAL.

Verdict should not be disturbed unless from whole case court is clearly convinced that jury did not fairly and honestly respond to testimony.

HON. A. G. BUSBY, Judge.

APPEAL from circuit court of Lauderdale county HON. A. G. BUSBY, Judge.

Suit by Mrs. Bama Taylor and others against the Universal Truck Loading Company. Judgment for the complainants, and the defendant appeals. Affirmed.

Affirmed.

J. H. Currie and J. C. Floyd, both of Meridian, for appellant.

In the presentation of this case, we shah not resort to the use of any authorities, saving and except the opinion of this court rendered on the former trial of this cause and found in 164 So. 3, together with the authorities cited therein.

The witnesses are the same, with the exception of the new witnesses; the facts are substantially the same; the parties are the same.

It is our opinion that the trial court committed error in not granting to the defendant the peremptory instruction requested, and that the trial court further committed error in excluding from the jury the testimony of Mr. York with reference to the conduct of Mr. Henry Covington at the place of the accident, shortly after the accident, in pointing out to the sheriff a place north of the bridge, at which, under his contention, the two trucks collided. This testimony offered out of the presence of the jury shows conclusively that Mr. Henry Covington, the owner of the truck, a mature man, in the cab of the truck where he could see everything that occurred the night of the accident, shortly thereafter and at a time when the sheriff of the county was investigating the cause of the accident, pointed out to the sheriff a place north of the bridge, at which point, under his statement, the collision occurred. This testimony was objected to on the ground that it was not properly a part of the res gestae, and that Mr. Henry Covington, a resident of Clarke county, was as available to the defendant under process of the court as he was to the plaintiff.

That not being a party to the suit, the plaintiff in this cause, Mrs. Bama Taylor, and her infant son, were in no wise bound by any statements or admissions he might make.

We are not going into any detailed technical discussion of the law with reference to the doctrine of res gestae, but we do contend that it is the duty of all courts in litigation of any causes before them to endeavor to arrive at the truth so that justice may be done as between the parties litigant.

It is our contention under all the facts that the present case comes squarely within the former decision of this court in the case between the same parties, decided on November 11, 1935, and that no better or further legal reasoning can be offered than the opinion of MR. JUSTICE GRIFFITH in that cause.

After a careful reading of this record, we do not think the court can escape the conclusion but that the jury was carried away with the fact a large commercial truck operated by a freight line had been a party to the death of three men, and that the dependents of those men ought to be compensated therefor, and that the verdict rendered by them was on that theory and that alone, as such a verdict could not have been arrived at under the facts and testimony presented to them on a hearing of the cause.

We fully appreciate the fact that the plaintiffs, as well as the defendants, have a right to their day in court and to a full, fair, and impartial hearing, but we do contend and insist upon the responsibility of the court when the facts, as in this case, show so clearly that the jury departed from all acceptable ranges of reasonable probabilities and awarded to the plaintiff damages to which she was not entitled, that such verdict should be set aside and a judgment entered reversing and rendering in this court.

Beard v. Williams, 161 So. 750; Shelton v. Underwood, 163 So. 830.

Reily & Parker, of Meridian, for appellees.

Conditions which follow a wreck should not be expected to be as orderly as if otherwise caused, and deductions and inferences therefrom would cover a broader latitude than if not caused by a wreck. These deductions and inferences are for the jury, and the difficulty incident to making accurate deductions only increases the necessity of consideration and determination by the jury.

Teche Lines, Inc., v. Pasavanti, 163 Miss. 93, 140 So. 677; Mobile & Ohio R. R. Co. v. Cox, 121 So. 292; Shelton v. Underwood, 163 So. 828.

In so far as the sufficiency of the testimony to sustain the verdict is concerned, we insist that this case should be affirmed.

We feel that the record meets the requirements of the law and that the objections made are insufficient. This case has been tried by two different juries as well as other cases involving the same facts. No fault has been found concerning the rulings of the trial court with the exception of the testimony of Mr. Covington and the failure to set the verdict aside for insufficient testimony and we feel that this case should be affirmed.

OPINION

Ethridge, P. J.

This is the second appeal of this case, the first decision being reported in 174, Miss. 353, 164 So. 3.

It is urged upon us here that the former decision is binding because there is no substantial difference in the evidence there and here. This is an erroneous view of the law upon that subject. When a case is reversed upon the ground that the verdict is contrary to the overwhelming weight of the evidence, it is sent back for a new trial, and the court below is not bound in the new trial by the judgment of this court on the weight of the evidence. The jury may find another verdict upon the same evidence, if, in their judgment, it is proper to do so. This court may then pass upon the sufficiency of the evidence in view of the fact that two juries have considered it as sufficient to sustain a verdict. This court may, if it still thinks the facts are contrary to the overwhelming weight of the evidence, set the verdict aside and remand the case for a further trial. But if a third jury finds that the evidence is sufficient, it then becomes binding upon this court and judgment must be rendered upon the verdict. Code 1930, section 592, and the cases cited thereunder.

This power of the court to review the evidence and set aside the verdict on the ground that the evidence is against the overwhelming weight of the testimony is very ancient, and has been the law of this state for the...