5 App. D.C. 167 | D.C. Cir. | 1895
delivered the opinion of the Court:
In one respect, at all events, we must hold the ruling of the court below to have been erroneous. There seems to be no good reason why the jury should not have been permitted to pass upon the claim of the plaintiffs for the goods furnished by them on the 1st and 2d of August, as well as for those furnished on the 3d. Mrs. Rowland had left the institution on the 30th of July, and the testimony on behalf of the plaintiffs was “that the goods ordered on the 1st, 2d, and 3d of August were not ordered by Mrs. Rowland, but were ordered from the sanitarium after he (the witness, William T. Warthen) had heard that Mrs. Rowland had left, though he did not know by whom ordered.” The testimony of the defendant in the case, after he had stated that Dr. Tompkins had general charge of the institution, was, in reference to this point, as follows : “ I ordered meat from Warthen once after Mrs. Rowland went away. This was on Saturday, August 3d. I went down to inquire where the meat had been purchased, and they told me from Warthen. I then gave orders to get enough to last until we got a new housekeeper. After I knew of Mrs. Rowland having a bill there, nothing was ordered from Warthen.” There is no pretense on the part of the defendant that the goods claimed by the plaintiffs to have been ordered from the sanitarium after Mrs. Rowland’s departure, and to have been delivered by them on the 1st and 2d of August, were not actually received and used in the institution, and under the circumstances, it was not proper to exclude the claim for the value of these goods from the consideration of the j^y-
We regard it as a sound and salutary rule of practice that a trial court may withdraw a case from the consideration of a jury, or what amounts to the same thing in our practice, may peremptorily direct a verdict for one or other party to a suit in clear cases, where the evidence, with all just inferences that might be drawn from it, would be insufficient to support a contrary verdict; and a trial court should not hesitate to exercise its right so to do, especially in cases in which, as we know by common experience, passion and prejudice are apt to supply, in the estimation of jurors, the absence or deficiency of proof.
It was said by the Supreme Court of the United States, by Mr. Justice Gray, in the case of Randall v. Baltimore and Ohio Railroad Company, 109 U. S. 478, following numerous precedents, “ that when the evidence given at the trial, with all inferences that a jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such verdict, if rendered, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.” And,, on the other hand, the converse of this proposition is well stated by Mr. Justice Harlan, speaking for the same high tribunal, in the case of Phœnix Insurance Co. v. Doster, 106 U. S. 30, as follows: “ Where a cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury, under proper directions as to the principles of law involved. It should never be withdrawn from them unless the testimony be of such conclusive character as to compel
Both of these rules are reaffirmed in the case of Goodlett v. Louisville and Nashville Railroad Company, 122 U. S. 391, 411, in an opinion by Mr. Justice Harlan. And in the more recent case of Richmond and Danville Railroad Company v. Powers, 149 U. S. 43, the same doctrine is again announced in an opinion by Mr. Justice Brewer, although in that case, with reference to the question of negligence, it is there said : “ It is well settled that where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this, whether the uncertainty arises from a conflict in the testimony, or because the facts being undisputed, fair minded men will honestly draw different conclusions from them.”
It has sometimes been said, and the statement is not an unfair inference from certain general expressions in some of the cases, that, whenever the trial court would set aside the verdict of a jury, when rendered, it ’may in advance direct a verdict to the contrary. But this undoubtedly states the rule too broadly. For it is not only the right, but often the duty, of a trial court, in the interests of justice, to vacate a verdict when the court is satisfied that the preponderance of evidence is against the verdict; and its action in such regard is matter of sound discretion, not to be revised on appeal by a purely appellate tribunal. And yet, though the trial court may, and often should, set aside a verdict on the ground of the preponderance of evidence being against it, and again remit the issue to a jury, it is not for that reason authorized in the first instance to direct a verdict for the party in whose favor it regards the evidence as preponderating. Where there is testimony of a substantial character to go to the jury, it is always for the jury to determine the question of the preponderance of evidence, subject to the revisory power of the court to order a retrial.
We presume it may be laid down as a general rule, subject perhaps to some exceptions or qualifications, that when the plaintiff has adduced testimony, fairly tending to prove a prima fade case in his favor, and which, in the absence of testimony on behalf of the defendant, would entitle him to solicit a verdict from the jury, the court may not withdraw his case from the consideration of the jury, no matter what the testimony for the defendant may be. Now, there is here testimony on behalf of the plaintiffs that the alleged indebtedness for which they seek to recover was contracted by an authorized agent of the defendant for the use and benefit of the defendant. If there was any doubt from this testimony as to the agency, the doubt was removed by the testimony of the defendant himself, when he said: “ She was to purchase the provisions and do the marketing; . . . she was to purchase all the provisions for the establishment.” But even the testimony for the plaintiffs, although more feebly, tended to prove the same fact. That the goods were contracted for by the agent so constituted, and were delivered and used at the defendant’s institution, is unquestioned; as is likewise the fact that the prices charged for them are fair. And there is likewise testimony tending to show that it was not unusual, under similar circumstances, to deliver goods of the same character upon credit. All this, if uncontroverted, would have justified the plaintiffs in asking a ver
The limitation upon the agency, that the agent should purchase for cash, and not upon credit, was matter of defense. It was brought out only in the testimony for the defendant. If true, it ought, perhaps, to defeat the plaintiff’s claim; for it would be intolerable that a man should be held liable for an indebtedness which he not only never authorized, but actually prohibited — although as against a general agency a secret inhibition should not, of course, prevail. But the plaintiffs are entitled to controvert before the jury the truth and sufficiency of that defense; and it is not for the court to say peremptorily that the defense has been established, and thereupon to direct a verdict.
We do not deem it necessary to follow counsel in their able and elaborate arguments upon the subject of agency, or to review the authorities which they cite, conflicting as some of them apparently are. If the case had been submitted to the jury upon instructions applicable to it, the propriety of such instructions might have warranted an extended investigation by us of the questions that have been discussed in argument. Those questions do not seem to us now to require determination, and we cannot anticipate that they will be presented in a new trial. On the record, as now presented, the only question before us is, whether the plaintiffs, in their testimony, had made out a prima facie case for the jury, or whether there was testimony in the case upon which they might reasonably have asked for the verdict of the jury. Regardless whether it was sufficient or insufficient, we think there was such testimony; and we think it was error to have taken away that testimony from the consideration of the jury.
We must, therefore, reverse the judgment of the court below,
