Wilson v. Jernigan

• Decision Date: 23 March 1909
• Citation: 49 So. 44,57 Fla. 277
• Parties: WILSON et al. v. JERNIGAN.
• Court: Florida Supreme Court

49 So. 44

57 Fla. 277

WILSON et al. v. JERNIGAN.

Florida Supreme Court

March 23, 1909

Headnotes Filed April 17, 1909.

In Banc. Error to Circuit Court, Santa Rosa County; J. Emmet Wolfe, Judge.

Ejectment by William H. Wilson and others, for the use of Simeon Otis against Charles Jernigan. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

In passing upon an assignment questioning the correctness of the ruling of the trial court in denying a motion for new trial which is based upon the sufficiency of the evidence to sustain the verdict, the guiding principle for an appellate court is not what it may think the jury ought to have done or what such court may think it would have done had it been sitting as a jury in the case, but whether as reasonable men the jury could have found such verdict. If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed.

The verdict of a jury should be conformable to legal rules and defensible in point of sense. It must not be absurd or whimsical. But an appellate court is not warranted in substituting its standard of what is reasonable for that of the jury. If reasonable men might have found the verdict in question, and it has received the sanction of the trial court, an appellate court should not disturb it.

The refusal of the trial court to grant a new trial for insufficiency of the evidence to sustain the verdict, or because the verdict is contrary to the evidence, will not be reversed unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the appellate court that it is wrong and unjust.

When the trial court concurs in the verdict rendered by a jury by denying the motion for a new trial, and there is evidence to support it, an appellate court should refuse to disturb it in the absence of any showing that the jurors must have been improperly influenced by considerations outside the evidence.

The trial court is authorized to regulate the order of the introduction of evidence, and its discretion in this matter will be interfered with by an apppellate court only when an abuse thereof is clearly made to appear.

If evidence apparently incompetent only because its relevancy is not apparent, or because it is not the best evidence, is offered, the trial court may, in the exercise of its discretion, receive it conditionally, if the counsel offering it gives assurance that he will supply the necessary foundation afterwards. If, however, such evidence is so conditionally received, and the necessary connecting evidence is not introduced, so as to show the relevancy of the admitted evidence, the court should exclude the evidence so received on its own motion; but if the failure to connect be not apparent or glaring, the objecting party should move to exclude it.

Where no objection is made at the trial to the admission of evidence, it is considered as received by consent and objection, if any to the evidence are waived, and the appellate court will not ordinarily consider an assignment of error based on the admissibility under the rules of legal procedure of the evidence so admitted without objection.

Where no objections are interposed to questions propounded to a witness, and his testimony is admitted without objection, the party so failing to object is not entitled as a matter of right to have the responsive testimony of the witness stricken out on motion, even though it may be irrelevant or incompetent and open to attack by proper grounds of objection.

A party cannot be permitted to lie by, and experiment upon the testimony by failing to interpose objections thereto at the proper time, and ascertain what might come of it, for benefit or disadvantage, and then, if it turns out to be unpropitious for him, seek to have it excluded altogether on motion.

Because a cross-examination shakes the credibility or demonstrates the inaccuracy and unreliability of the testimony of a witness given by him on his direct examination, it furnishes no reason or ground for striking out such testimony on motion; but, if it is otherwise proper testimony, it remains for the proper consideration of the jury--both the testimony brought out on the direct examination as well as that elicited on the cross-examination.

Where the matter to be proved is simply the fact that a contract has been made, as distinct from its terms or provisions, the best evidence rule does not apply, and parol evidence is admissible.

In an action of ejectment, where the defendant relies upon adverse possession for the requisite statutory period, no error is committed in sustaining an objection of the defendant to a question propounded by plaintiffs to a witness as to whether or not the custom had prevailed about 15 years or more ago of cutting timber on lands without first obtaining the permission of the owner thereof, since such custom would have been a direct violation of the law, and custom cannot prevail against a legal right.

A peremptory instruction to the jury to return a verdict in favor of the plaintiffs is properly refused where the evidence is conflicting and will admit of different reasonable inferences.

In an action of ejectment where the defendant relies upon adverse possession of the lands in question for the requisite statutory period, and the evidence fails to establish the character of such possession for such period, under the terms of the statute, a judgment rendered upon a verdict in favor of the defendant must be reversed, and the case remanded for a new trial.

COUNSEL

Jones & Pasco, for plaintiffs in error.

T. F. West, for defendant in error.

OPINION

SHACKLEFORD J.

This is an action of ejectment instituted in the circuit court for Santa Rosa county by the plaintiffs in error against the defendant in error, seeking to recover the possession of that tract of land known as the 'Christian Limbaugh grant,' being section 22, township 1 north of range 29 west, containing 700 acres, together with mesne profits. No point is made on the pleadings, the declaration being in the usual form, to which the defendant filed a plea of not guilty. Trial was had before a jury, resulting in a verdict and judgment in favor of the defendant, which the plaintiffs seek to have reviewed here by writ of error.

Seven errors are assigned, but the sixth is expressly abandoned. The first and seventh assignments are discussed together by the plaintiffs, and we shall likewise so treat them. The first assignment is based upon the overruling of the motion for a new trial, while the seventh is based upon the refusal of the trial court to instruct or direct the jury to return a verdict in favor of the plaintiffs. The motion for a new trial consists of five grounds, the first four of which question the sufficiency of the evidence, and the fifth of which is that the court erred in admitting over the objection of the plaintiffs the deed from John Hobbs, as trustee, to Tom Robinson and John Hobbs; such fifth ground also constituting the basis for the third assignment.

As is admitted by the plaintiffs, two-thirds of the transcript is composed of documentary evidence of plaintiffs' title, which is unnecessary for us to consider by reason of the fact that the court instructed the jury that the plaintiffs had sufficiently deraigned their title from the sovereign to one John Innerarity, their ancestor, under whom they claim as heirs, and that if such heirship is established by a preponderance of the evidence the legal title would be in the plaintiffs. The plaintiffs below, who are the plaintiffs in error here, could not complain of this charge, even if it was erroneous, and as a matter of fact they are making no complaint on that point. No errors of any kind are predicated upon the charge of the court and the only instruction requested and refused by the court was a peremptory instruction to return a verdict in their favor. We find that the jury was fully instructed upon the question of heirship and as to the character and degree of proof requisite to establish the same. Since no exception was taken to that portion of the charge, and no additional instructions requested by the plaintiffs, they must have conceived that the law applicable thereto was stated correctly. The defendant contends here that such heirship was not sufficiently established, and discusses the testimony adduced along that line; but we see no occasion for going into this matter, especially since some of such testimony was admitted without objection. For the purposes of the case, as the matter comes before us, it may be assumed that such heirship was sufficiently established.

This brings us to the crucial question of the case, as to the sufficiency of the evidence to establish adverse possession by the defendant for the requisite statutory period. In other words, upon all the evidence adduced, could the jury as reasonable men have found a verdict for the defendant? In passing upon this question, we are not to be guided by what we think the jury ought to have done, or what we think we would have done had we been sitting as a jury, but whether as reasonable men they could have found such verdict. This was the question first propounded to the trial judge in the motion for a new trial, which he overruled, thereby giving the verdict his sanction and tacitly answering such question in the affirmative. See the discussion in Thayer's Preliminary Treatise on Evidence, 208 et seq., as to the revising or setting aside by the court of the verdict of a jury, which we have referred to with approval in Seaboard Air Line R. Co. v. Scarborough, 52 Fla....