Wayne v. Venable

• Decision Date: 08 July 1919
• Docket Number: 5206.
• Citation: 260 F. 64
• Parties: WAYNE et al. v. VENABLE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

260 F. 64

WAYNE et al. v. VENABLE et al.

No. 5206.

United States Court of Appeals, Eighth Circuit.

July 8, 1919

E. L McHaney, of Little Rock, Ark. (R. L. Rogers and G. W. Murphy both of Little Rock, Ark., on the brief), for plaintiffs in error.

Powell Clayton, of Little Rock, Ark. (U.S. Bratton, of Little Rock Ark., on the brief), for defendants in error.

Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District Judge.

SANBORN Circuit Judge.

Each of the defendants in error, J. A. Venable and J. V. Boyd, brought his separate action in the court below on March 23, 1917, against Harry A. Wayne, Walter Alexander, and others for $5,000 damages and $10,000 punitive damages, because, as each of the plaintiffs below alleged, Wayne and Alexander conspired and combined with each other and others to prevent them who were qualified electors in Eagle Township, Ark., from casting their votes therein for presidential electors, United States Senator, and a member of Congress at the general election in that township on November 7, 1916, when and where presidential electors, a United States Senator, and a member of Congress were to be voted for and elected, whereby each of the plaintiffs was deprived of the privilege of voting for any candidate for presidential electors, or United States Senator, or for Congressman, at that election. By order of the court the two actions were consolidated and tried together, and they resulted in a verdict in favor of each of the plaintiffs against Wayne and Alexander for $2,000. Judgments accordingly were rendered, and the defendants below here complain of six alleged errors in the trial.

The first is that the court overruled the objection of counsel for the defendants to the testimony of Mr. Leach, a witness for the plaintiffs below, to a conversation between him and Dr. J. R. Wayne, one of the alleged conspirators. The objection, however consisted of the two words, 'We object.' The second complaint is identical with the first, and relates to the same conversation, but in that instance counsel did not even use the words, 'We object.' The objection stated no ground or reason for it. It failed to direct the attention of the court below to the particular feature upon which objecting counsel relied, and it raised no issue of law, the decision of which was reviewable in an appellate court. Davidson S.S. co. v. United States, 142 F. 315, 316, 73 C.C.A. 425; Eli Mining & Land Co. v. Carleton, 108 F. 24, 47 C.C.A. 166.

The third complaint is that the court erred in stating in the presence and hearing of the jury after it had overruled defendants' objection to the question propounded by plaintiffs to their witness Lee calling for the official list of the electors of Eagle township of 1916 as follows: 'It may be introduced for the purpose of showing that for the purpose of carrying on the original conspiracy they failed to provide the means of voting for a sufficient number, as required by law. ' In this remark the court referred to the list of taxes paid in 1916 prior to the first Monday in July, which plaintiffs' counsel offered to introduce to show that the number of booths required by law, a booth for each 100 electors, had not been provided. To this remark of the court Mr. Rogers, one of the counsel for the defendants, said, 'To which ruling of the court the defendants by their attorneys duly excepted at the time. ' He further said, 'According to the number of poll taxes paid it would be inadmissible. ' Thereupon the court immediately reversed its ruling and said, referring to this list of taxes, 'It is inadmissible.' The position that there was fatal error in the remark here challenged is untenable: (1) Because no objection or exception to any part of the remark, except the ruling admitting the list, was made or taken, and that ruling was immediately reversed, and the list was excluded from the jury before the number of poll taxes it disclosed as paid came to their knowledge; and (2) because no motion or request was made to withdraw or strike out the remark; and (3) because in view of the immediate reversal of the ruling it is clear that the effect of the remark was so completely nullified that it did not and could not have been prejudicial to the defendants. Wolf v. Edmunson, 240 F. 53, 57, 153 C.C.A. 89.

The fourth complaint is that the court refused to instruct the jury to return a verdict for the defendants at the close of the evidence. Upon nearly every material issue at the trial the evidence was conflicting. This complaint therefore does not present the question of the weight of the evidence, for it was the exclusive province of the jury to determine that issue, and they have decided it against the defendants. The only question within the jurisdiction of the court is whether or not there was any substantial evidence to sustain their verdict, and in considering that question every material issue of fact upon which there was a substantial conflict in the evidence must be treated as decided in favor of the plaintiffs.

The right of qualified electors to vote for a member of Congress at a general state election, which is also an election at which a Congressman is to be lawfully voted for and elected, is a right 'fundamentally based upon the Constitution (of the United States), which created the office of member of Congress, and declared it should be elective, and pointed to the means of ascertaining who should be electors. ' Ex parte Yarbrough, 110 U.S. 655, 664, 665, 4 Sup.Ct. 158, 28 L.Ed. 274.

An action for damages in the proper federal court lies by a qualified elector for his wrongful deprivation of this right by a defendant or by an effective conspiracy of several defendants who deprive him thereof. Wiley v. Sinkler, 179 U.S. 58, 62, 63, 64, 21 Sup.Ct. 17, 45 L.Ed. 84; Swafford v. Templeton, 185 U.S. 487, 491, 492, 22 Sup.Ct. 783, 46 L.Ed. 1005.

In the eyes of the law this right is so valuable that damages are presumed from the wrongful deprivation of it without evidence of actual loss of money, property, or any other valuable thing, and the amount of the damages is a question peculiarly appropriate for the determination of the jury, because each member of the jury has personal knowledge of the value of the right. Scott v. Donald, 165 U.S. 89, 17 Sup.Ct. 265, 41 L.Ed. 632; Wiley v. Sinkler, 179 U.S. 58, 65, 21 Sup.Ct. 17, 45 L.Ed. 84.

The plaintiffs brought this action against Dr. J. R. Wayne, Walter Alexander, Harry A. Wayne, Wright W. Wilder, James T.

Ritchie T. L. Hughes, Zeb E. Perry, O. B. Clark, and Fred Lynn. They alleged that these defendants conspired to prevent each of the plaintiffs, who were qualified electors in Eagle township, from voting at the general election in that township in the state of Arkansas on November 7, 1916, and that by means of that conspiracy they did prevent each of them from voting at that election at which a United States Senator and a member of Congress were to be lawfully voted for and elected. The record in this case convinces that while there was a conflict in the evidence regarding nearly all the material...