Yazoo & Mississippi Valley Railroad v. Wallace,

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Notebook

| Miss. | Mar 15, 1907

Lead Opinion

Cali-ioon, J.,

delivered the opinion of the court.

One of the grounds of the motion for a new trial is that the verdict was excessive. In. overruling it the circuit court said: “The verdict was large, and doubtless too large to stand; but, under § 4910 of the Code of 1906, it had no power to interfere with the amount of the verdict.” This, we think, was very clearly a ruling that that section is constitutional and within the power of legislative enactment. If this be not absolutely true, and we think it is, it must then be certain that the circuit court refused to adjudicate that ground of the motion. In this event the result of our deliberations must be the same, because the .people, in the organic law, have given us only appellate powers. We can act only in review of the record presentations of what is done, or not done, or refused to be adjudicated. We can and should reverse in those cases alone where, in our judgment, there is reversible error in what is done, or omitted, or declined to be decided in the court of original jurisdiction.

Section 4910 of the Code of 1906 is this (italics being ours) :

“The circuit court shall not in any case have the authority to cause the plaintiff to enter a remittitur on pain of suffering a new trial, but if there is no other error committed during the trial of any such cause except that the verdict is, in the opinion of the court, excessive, the court shall overrule the defendant’s motion for a new trial. But the supreme court may, where it thinks the verdict of the jury excessive, reverse the case unless the appellee will enter a remittitur in such sum as the supreme court shall direct.”

This statute is plainly unconstitutional and void. It is for the benefit of plaintiffs. It shuts out defendants from having complete and final disposition of their rights in a forum provided by the organic law for all, and into which they have been forced by plaintiffs. It compels them to appeal, which otherwise they might not wish to do, and then concludes with a clause, as a salve, by attempting, in the very face of the con*615stitution, to give the supreme court original, instead of mere appellate, jurisdiction. It M’orks only against the defendant litigant. If the verdict against him be for too much, he must bear the injustice; but note, if it be for too little, the favored plaintiff is not concluded, but may move for new trial. If the jury gave too much, by a miscalculation of the amount due on a promissory note, the defendant must suffer or appeal. He must do this, even if the verdict be without any sort of support in the evidence. No other than the monstrous conclusions above indicated can be drawn from this act. Even in matters of libel, though the constitution itself provides that the “jury shall determine the law and the facts,” it was careful to add “under the direction of the court.” Such a clause as sec. 4910 would hardly have received a vote in a convention of the people to adopt a constitution. If adopted by such a convention, it would probably be void as in conflict with the constitution of the United States, which forbids the deprivation of property “without due process of law.” Our own constitution provides (sec. 31) that “the right of trial by jury shall remain inviolate.” When this was adopted, “trial by jury” meant a trial in court under the forms of law, with a judge presiding to direct the proceedings in conformity with it. Thvelve men in the woods or on a street corner were not imagined.

The demurrer to the declaration should have been sustained. Antagonistic causes of action should not be allowed in one count. Plaintiffs are not restricted in the number of counts, but may not join in one common-law causes as to unsafe ways and appliances with causes arising from the negligence of fellow servants under sec. 193 of our constitution. They are inconsistent. I. C. R. R. v. Abrams, 84 Miss., 456" court="Miss." date_filed="1904-03-15" href="https://app.midpage.ai/document/illinois-central-railroad-v-abrams-7989185?utm_source=webapp" opinion_id="7989185">84 Miss., 456, 36 South., 542.

We decide only what we have stated. There are other serious matters, -but it is hardly possible they can arise on any other trial.

Beversed and remanded.

Concurrence Opinion

Whitfield, O. J.,

delivered the following specially concurring opinion: It was not for the legislature to infringe upon the judicial power vested in the circuit courts. On behalf of the code commissioners who prepared the Mississippi Code of 1906, I desire to say that § 4910 here involved, and § 4811 of the Code, are nonsense written therein by legislative blundering. The commission disclaims any responsibility for their most éxtraordinary blunders.