171 So. 550 | Miss. | 1937
Appellee instituted an action against appellant for personal injuries alleged to have resulted from a defective floor in the store of appellant, and having recovered judgment in the trial court, this appeal has followed.
There are eight assignments of error, the first being that the court erred in sustaining the motion of appellee for a view of the premises by the jury, and the eighth is that the verdict is against the overwhelming weight of the evidence. There is an assignment, No. 2, that the court erred in not directing a verdict in favor of the defendant, which latter assignment is not well taken for the reason that there is some substantial testimony which would sustain a verdict for appellee. See the rule on this subject, Justice v. State,
For more than seventy-five years this court, along with the great majority of the courts in this country, has been definitely committed to the rule that the courts have the power and the corresponding duty to review and set aside verdicts upon the facts in, but only in, the following three cases: (1) Where the verdict is without the support of any competent evidence; (2) where the verdict is without the support of any reasonably believable proof; and (3) where the verdict is against the overwhelming weight of the evidence.
In Williams Yellow Pine Co. v. Henley,
Since the power and duty to review verdicts upon the facts in the three stated instances are constitutional powers and duties, no act of the Legislature would be constitutionally valid which would attempt to abridge that power and duty. Such an act would be rejected by the court, as was the act of a somewhat similar nature which was declared unconstitutional in Yazoo M.V. Railroad Co. v. Wallace,
And since the Legislature may not directly abridge the constitutional judicial powers and duties herein discussed, it follows that this may not be done by indirection; and thus it may not be done by the device of a *570 statute which would allow a jury to be taken to view the premises in any and every sort of case, and thereby practically cut off the power of the trial judge, and particularly of this court, to review an assigned ground for a new trial that the verdict is contrary to the overwhelming weight of the evidence. Therefore, whatever the language of the statute providing for a view of the premises, the interpretation thereof must be such that the view is allowable only when the necessity therefor "in order to reach the ends of justice" bears some fair relation by way of equivalency, in that interest, to the right which otherwise would be unhampered and unimpaired to have the verdict reviewed on the record evidence. There must be such an interpretation of, and administration under, the statute as will harmonize it with the constitutional principles of the procedural system of which it is a part.
In Jones v. State,
The record in the case now before us shows that in the request made by appellee for a view by the jury, no reason was given therefor other than that it was proper in order to reach the ends of justice — which is nothing but the statement of a conclusion. The only statement of fact made in the application was that the store was within seventy-five yards of the courthouse; and so far as the record shows the court, over the objection of the appellant, made the order for the view without any inquiry into the facts which would disclose any such necessity as we have above set out as being requisite to an order for a view, the trial judge stating merely that he could see no harm in sustaining the request. The request for a view may be made orally, in the absence of the jury, and transcribed into the court reporter's record; but the request must state the facts which bring the application within the rule heretofore and hereinabove laid down, and if the other party object or challenge the facts, the court must hear evidence or sworn statements touching those facts which must be reported in the transcript; otherwise no order for a view can be validly made.
No such facts were here shown. The transcript before us fails to indicate that any such facts, as were necessary to authorize a view, could have been shown. The *572 order for a view was therefore erroneously made; the view was unwarranted; and since it has improperly hampered appellant in respect to a valuable constitutional right, to wit, to have the verdict reviewed on the assigned ground that it is contrary to the overwhelming weight of the evidence, the judgment must be reversed and the cause remanded. It may be that in a case where, looking alone to the sworn testimony taken in the courthouse, leaving wholly aside the evidence taken at the scene, and leaving aside anything which the jury may have observed at the scene, it is manifest that the assignment that the verdict is against the overwhelming weight of the evidence is not well taken, an unauthorized view would not reverse; but there is no such manifest case here. On the contrary, the assignment, when reviewed aside from the evidence taken at the scene, and discarding anything that the jury may have observed there, presents a question of sufficient seriousness that appellant is entitled to have it examined free from the encumbrances which the view and its consequences have imported into this trial.
We decide no other question than those expressly herein mentioned, since, upon a new trial, the other alleged errors, if they be errors, may not again appear.
Reversed and remanded.