| Ark. | Apr 20, 1914
(after stating the facts). Cinda Williams and Ed Williams were the plaintiffs in this action, and the jury returned a verdict for the plaintiffs. It is now contended by counsel for defendant that, under the undisputed evidence, Ed Williams had no interest in the mules, and that he and Cinda Williams could not maintain a joint action for them. In this connection it may be stated that no objection was made to the instructions given by the court. If the jury believed the testimony of the plaintiffs, the mules belonged to Mrs. Cinda Williams, one of the plaintiffs, and it was immaterial to the defendant that she joined Ed Williams with her in the suit to recover possession of the mules. It is the settled law of this State that the Supreme Court will only reverse a judgment for errors prejudicial to the.rights of the party appealing, and the defendant in this action can not be prejudiced by the fact that Ed Williams was made a party plaintiff with his mother. We have not set out the testimony in full, and do not deem it necessary to make any extended comment on it. It may be true, as stated by counsel for defendant, that the great preponderance of the evidence was in her favor, but that question was settled by the verdict of the jury, and we are not at liberty to disturb the verdict. The jury were the sole judges of the credibility of the witnesses, and the weight to be given to their testimony. According to the testimony of Mrs. Cinda Williams, the mules belonged to her, and it is not within our province to disturb the verdict, even though, we may believe that the jury was wrong in its finding.
A new trial is also asked because of newly discovered evidence. Counsel for defendant say that they can prove by two of the clerks in the store of Mr. Hawks at the time he sold the mules that Mr. Hawks sold them to Lon Williams, and not to his mother. Counsel also claims that he can prove by a Mr. Shoat, the person to whom the first mules were swapped for the mules in controversy, that he swapped with Con Williams, and that the mules belonged to him. Counsel insists that neither he nor his client knew of the existence of this testimony, and could not by reasonable diligence have discovered it before the trial. In the case of Mutual Life Insurance Co. v. Parrish, 66 Ark. 612" date_filed="1899-06-10" court="Ark." case_name="Mutual Life Insurance v. Parrish">66 Ark. 612, the court held: “To prevent a miscarrriage of justice, it is proper to grant a new trial for newly discovered evidence rebutting the undisputed evidence on which the verdict was based, where the party asking for a new trial had no knowledge of such rebutting evidence, and could not reasonably have been required to make effort to ascertain it before or during the trial.” Counsel contends that the decision in that case rules his present contention. We can not agree with him. We think the case falls within the rule announced in Petty v. State, 76 Ark. 515" date_filed="1905-10-07" court="Ark." case_name="Petty v. State">76 Ark. 515, where the court held: “A party can not claim to have been surprised by the testimony of witnesses of the opposite party, nor by evidence introduced by such party, if the same tends to support the issues joined, and is such as mig*ht have been reasonably anticipated.” See also St. Louis & S. F. Rd. Co. v. Kilpatrick, 67 Ark. 47" date_filed="1899-10-28" court="Ark." case_name="St. Louis & San Francisco Railroad v. Kilpatrick">67 Ark. 47; McDonald v. Daniel, 103 Ark. 589" date_filed="1912-05-27" court="Ark." case_name="McDonald v. Daniel">103 Ark. 589. The only question at issue in this case between the parties was that of the ownership of the mules, and counsel for defendant might have reasonably anticipated that any testimony tending to establish that issue would be .introduced at the first trial. The evidence on account of which they now seek a new trial was necessarily germane to the only issue in the case, and was such that its existence must have occurred to counsel for defendant in his preparation for trial. If counsel had exercised proper diligence before the trial, he could have discovered this testimony. Two of the witnesses lived in the same community. It was the contention of the defendant that Lon Williams, her deceased husband, had purchased the mules from Mr. Hawks. Mr. Hawks was a witness, and testified in her behalf. By questioning him before the trial, she, or her counsel, could have readily ascertained that these new witnesses were employed in his store and that they might likely know something about the transaction. By exercising diligence they might have also ascertained the residence of the man with whom the swap was made.
It is next contended by counsel for defendant that the judgment should be reversed and a new trial granted because he states in an affidavit that he was present in the court room while the jury empanelled to try the case was deliberating in tbe-jury room, and that he saw one of the jury, while out of the jury room, conversing with a party other than the officer in whose charge the jury had been placed. In civil trials the jury may be permitted to separate either during the trial or after the ease is submitted to them. Kirby’s Digest, § § 6198-6199. The record in this case does not show whether the court permitted the jury to separate. The court might do so in the exercise of its discretion, and this, we believe, is almost the universal practice in the trial of civil cases. If the jury was permitted to separate by the court, the jurors would necessarily speak to persons with whom they came in contact. If they violated the admonition of the court not to speak about the case, the burden of showing that fact would be upon the defendant, and he has not attempted to show that the conversation that the juror had in any wise pertained to the case which the jury had under consideration.
Finally, it is contended by counsel for defendant that the judgment should be reversed because when the jury announced its verdict in favor of plaintiffs, counsel for defendant asked that the jury should be polled. While this was being done, one of the jurors answered that he did not believe the verdict right, but agreed to it for the sake of harmony. Section 6203 of Kirby’s Digest provides in substance that when the verdict is announced either party may require the jury to be polled, and that if any one answers in the negative the jury must again be sent out for further deliberation. In the case of Commonwealth v. Tuey, 8 Cush. (Mass.) 1, the court said:
“The jury room is, surely, no place for pride of opinion, or for espousing and maintaining, in the spirit of controversy, either side of a cause. The single object to be there effected is to arrive at a true verdict; and this can only be done by deliberation, mutual concession, and a due deference to the opinions of each other. By such means, and such only, in a body where unanimity is required, can safe and just results be attained; and without them, the trial by jury, instead of being an essential aid in the administration of justice, would become a most effectual obstacle to it.”
While the law does not contemplate that any juror should yield his opinion for the mere purpose of agreement, it does contemplate that the jury shall, by discussion, harmonize their views, if possible, for in no other way would a verdict be possible. We think when this fact is considered, it can not be said that the juror answered in the negative, but that he simply meant to say that, after discussion of the case with the other jurors in an effort to harmonize the views of the individual jurors, he had receded from the position first taken by him when the jury retired to deliberate. In other words, we think that he did not answer in the negative, but answered in the affirmative that the verdict was his own. Therefore, the judgment should not be reversed on this account.
It follows from what we have said that we find no> prejudicial error in the record, and the judgment must be affirmed.