70 Ark. 1 | Ark. | 1901
This suit is on a fire insurance policy. The fire occurred on the 6th of December, 1895. Suit ivas first brought on the 13th of February, 1896, and on the 24th of December, 1896, the plaintiff, took a nonsuit. On the 5th of January, 1897, she again brought suit in the Pulaski circuit court. The policy contains, this provision: “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity, * * * unless commenced within twelve months next after the fire.”
There was ample proof (circumstantial) in the record tending to show that the fire which caused the loss in controversy was produced by the willful negligence or connivance and procurement of the plaintiff herself; but the jury has determined that issue in her favor, and we cannot disturb its verdict, for it is not without sufficient legal evidence to support it.
The defendant, among others, make the following request for instructions: “The jury are the sole judges of the credibility of the witnesses and the weight to be given to their testimony, and in passing upon the testimony of any witness the jury have a right to take into consideration the interest any such witness may have in the result of this trial, the manner of testifying, and the former life or history any such witness may have given of him or herself in this case;” which the court refused. On the credibility of witnesses, the court gave the following: “You are the sole judges of the credibility of these witnesses and of the weight of the testimony that is given you. The law has wisely placed that, and made that the province of twelve men selected from the county to listen to the evidence, weigh it, and give a fair consideration to the testimony of the different witnesses. The court cannot obtrude upon that part of your duty, and would not do it, but simply asks you now fairly to consider and determine the evidence. Take the different witnesses, and give to each one such, and such only, weight as you, in your fair and deliberate judgment, using your common experience and common sense in regard to such matters, think they are entitled to, and then, giving the weight to the different witnesses in determining their credibility, you take the whole evidence, and determine what facts have been proved to you, and apply the law the court gives you to these facts, and deduce your verdict therefrom."
The court fails in the above instruction to call the attention of the jury to any of the well-established legal tests and methods by which the credibility of witnesses is determined. The jury are told to use their common experience and common sense in regard to such matters. The jury might not have any common experience about determining the credibility of witnesses who testify in court, and their common sense might not enable them to fix any definite and certain rules upon the subject. Such a standard would be capricious and variable. The law has wisely recognized certain tests and methods, such as “interest in the result of the suit," “manner of testifying," etc., which, when applied to the testimony of witnesses, will enable the jury to determine what weight or credit to give their testimony.
The defendant certainly had the right to have these familiar tests applied in this case. The right to recover was based almost entirely upon the testimony of the plaintiff herself. The jury should have been told specifically that they had the right to consider the interest of any of the witnesses in the result of the suit and their manner of testifying in determining their credibility. It was not improper or prejudicial either in this case to tell the jury they might consider the former life or history of any witness, as given by himself or herself, in determining their credibility. The testimony as to such history or life was elicited on cross-examination, and went before the jury without objection. It might not have been error to have omitted the clause as to the life and history, in as much as there was nothing in such history or life to discredit the testimony of any witness, but, such being the case, the witness-plaintiff cannot complain of what she said, without objection, of herself, and no prejudice could have resulted in telling the jury that they might consider such life or history.
The court was not asked to tell the jury to consider such life or history for or against the witnesses in determining their credibility.
Various other questions were raised, but they involve familiar principles, and we deem it unnecessary to discuss them.
For the error in refusing the request of the defendant (appellant), supra, the judgment is reversed, and the cause is remanded for new trial.