Petherbridge v. Princess Anne County

136 Va. 54 | Va. | 1923

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

There is but one assignment of error and that is that' the trial court erred in refusing to set aside the verdict of the jury for the defendant county and enter judgment for the plaintiff for the full amount of his claim, on the ground that the testimony for the plaintiff proved his case and that the verdict was contrary to the evidence, in that the jury, from mere caprice and without any just cause therefor, disregarded the testimony for the plaintiff. The sole question for our decision, therefore, is this:

1. Is the assignment of error just stated well taken?

The question must be answered in the negative.

[1] As appears from the statement preceding this opinion, the memorandum, used by the plaintiff in the course of his testimony merely to refresh his memory, was not even introduced in evidence; and the plaintiff affirmatively stated that he had no personal recollection whatever that a single dog was killed in Princess Anne county. So that there was no evidence whatever before the jury to sustain any part of the plaintiff’s claim, except the single general statement of the witness, Stephens, introduced by the plaintiff as a witness in his behalf, who testified that “ten or twelve dogs” were killed (presumably meaning by the plaintiff, although he does not say so) in Princess Anne county. Now, in view of the fact that the jury might have reasonably considered that this witness was under the influence olthe plaintiff ; that the breakdown of the abortive attempt of the plaintiff to maintain in his testimony before the jury that he was testifying from an original memorandum made at the time the alleged dogs were killed, which he admitted on cross-examination was not such a memorandum, was sufficient in itself to justify the jury in believing that the plaintiff was wholly unreliable and that his claim was fraudulent; and in view of the further consideration that the jury were the sole judges of the credibility of the witness, Stephens, as affected by bias in favor of the plaintiff; by the indefinite character of his testimony, as it appears in the record; and by his demeanor on the witness stand, of which we can form no idea, and which, of course, does not and cannot appear from the record; the jury may have reasonably wholly disbelieved Stephens’ testimony with respect to the “ten or twelve dogs.” So that, as the jury may have reasonably found that there was no reliable testimony whatever, and, hence, no evidence before them, to sustain a verdict for the plaintiff, under the settled rule on the subject we must so find.

Moreover, there was the testimony for the defendant county of the game warden for Princess Anne county, and the admissions of the plaintiff himself as to his engagements on one of the days on which he claimed to have killed eight of the dogs included in his account, which tended to show that the account of the plaintiff was a false account.

Further: There was the testimony for the defendant county of the chairman of its board of supervisors, to the effect that he didn’t know that any dogs had been killed in Princess Anne county. It seems reasonable to suppose that, if the number of dogs had been killed by the plaintiff, as claimed by him, within the period as claimed, the chairman of the board of supervisors of the county would have known something about it.

There were, also, the other discrediting circumstances of the failure of the plaintiff to introduce any testimony to sustain his claim, beyond the aforesaid testimony of Stephens as to ten or twelve of the dogs, and his lame excuses for not producing other testimony.

[2] As said by the court, in its opinion delivered by Judge Burks, in Director General v. McCall, 133 Va. 487, 113 S. E. 835: “A number of cases have come to this court on certificates of evidence since the Code went into effect, and we have been asked to set aside verdicts because contrary to the evidence, or without evidence to support them. We have uniformly refused to do so where there was involved the credibility of witnesses, whose testimony the jury might reasonably have believed, or the weight to be given to their testimony, or a question of the mere preponderance of the evidence.” Citing Lorillard Co. v. Clay, 127 Va. 734, 104 S. E. 384; Graham v. Com., 127 Va. 808, 103 S. E. 565; Smyth Bros. v. Beresford, 128 Va. 137, 175, 104 S. E. 371; Queens Ins. Co. v. Perkinson, 129 Va. 216, 222, 105 S. E. 580; Ambrose v. Com., 129 Va. 763, 765, 106 S. E. 348, 14 A. L. R. 1268; Tucker Sanatorium v. Cohn, 129 Va. 575, 591, 106 S. E. 355; Du Pont Co. v. Brown, 129 Va. 112, 121, 105 S. E. 660; Clinchfield Coal Corp. v. Hayter, 130 Va. 711, 714, 108 S. E. 854; Forbes & Co. v. So. Cotton Oil Co., 130 Va. 245, 108 S. E. 15, and cases cited therein.

The following authorities are cited and relied on for the plaintiff .to sustain the aforesaid assignment of error: Two Virginia cases, namely: Southern Amusement Co. v. Ferrell, 125 Va. 429, 437, 99 S. E. 716; Palmer v. Showalter, 126 Va. 306, 101 S. E. 136, and the following cases from other jurisdictions, namely: St. Louis, etc., R. Co. v. Humbert, 101 Ark. 532, 142 S. W. 1122, 1123; Kansas City, etc., R. Co. v. Deaton (Miss.), 9 So. 828; St. Louis etc., R. Co. v. Ramsay, 96 Ark. 37, 131 S. W. 44, 46, Ann. Cas. 1912B, 383; Same v. Spillers, 117 Ark. 483, 175 S. W. 517, 518; Same v. Landers, 67 Ark. 514, 55 S. W. 940, 941; Georgia, etc., R. Co. v. Harris, 83 Ga. 393, 9 S. E. 786; Georgia Railroad & Banking Co. v. Wall, 80 Ga. 202, 7 S. E. 639, 640; Mobile, etc., R. Co. v. Jackson, 92 Miss. 517, 46 So. 142, 143; Grand Fraternity v. Melton, 102 Tex. 399, 117 S. W. 788, 789; Central of Ga. Ry. Co. v. Chambers, 194 Ala. 152, 69 So. 518, 520; Robertson v. Dodge, 28 Ill. 161, 81 Am. Dec. 267; Larson v. Glos, 235 Ill. 584, 85 N. E. 926, 927; Lomer v. Meeker, 25 N. Y. 361, 363; Hull v. Littauer, 162 N. Y. 569, 57 N. E. 102; In re Miller’s Will, 49 Ore. 452, 90 Pac. 1002, 1007, 124 Am. St. Rep. 1051, 14 Ann. Cas. 277; Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243; Whitlock v. Wynn Co. 15 Ga. App. 38, 82 S. E. 664, 665; Engmann v. Estate of Immel, 59 Wis. 249, 18 N. W. 182, 183; Bowen v. Worumbo, 105 Me. 31, 72 Atl. 685, 686; Loon v. Jones, 113 Me. 563, 92 Atl. 1006, 1007; and Brown v. Johnson & Johnson, 132 Ky. 70, 116 S. W. 273, 274. We find nothing in any of these decisions in conflict with the rule in Virginia on the subject under consideration as it is stated in the above quotation from Director General v. McCall, or in conflict with the conclusion we have reached and stated above with respect to the verdict in the instant case.

[3] In the petition and reply brief, and in the oral argument for the plaintiff, mention is made of certain colloquies between the trial judge and the plaintiff while on the witness stand, which are set forth in the statement preceding this opinion; and the' position taken for the plaintiff on this subject is that the jury was misled adversely to plaintiff by these remarks of the judge; and that this error was not cured by the instruction given upon the conclusion of the introduction of evidence, because such remarks were in direct conflict with the instruction, and that this, in effect, created a conflict in the directions to the jury. And in the reply brief for the plaintiff, on the subject of the remarks of the judge, this is said: “It was this attitude of the court—this plain direction to the jury—-that explains, as nothing else in the record can explain, the verdict of the jury.”

[4] As above pointed out, the verdict of the jury may be reasonably explained, as we think, upon other grounds. We do not wish, however, to be understood as approving of the action of the learned trial judge in making the remarks mentioned; although they were doubtless made without any thought that they would influence the verdict, and when, for the moment, the judge was forgetful of the jealous care with which the rule on the subject in this State has, from the earliest times, forbidden the trial judge to express any opinion to the jury, except a hypothetical one, as to the rights of the parties. Hence we will say, that if timely objection had been made to such remarks, and they had not been corrected, by express reference to them, and there had been an assignment of error on that point supported by a bill of exceptions or certificate, bringing the matter before us for review, we might have felt constrained to reverse the case. But as the ease stands the subject cannot be regarded as before us and therefore cannot be dealt with by us. However, had objection been made to the remarks in question before the trial court they would no doubt have been promptly corrected and so explicitly as to have left no room for them to have misled the jury. At any rate such an objection cannot be considered when, as here, it is made for the first time in the appellate court.

The case will be affirmed.

Affirmed.