Opinion
No. 33625.
March 20, 1939.
1. APPEAL AND ERROR.
In determining whether evidence makes substantial issue of fact, the whole of the evidence in behalf of the party who insists that it is sufficient for jury together with undisputed facts and not merely certain selected parts thereof is to be considered.
2. TRIAL.
When litigant is only witness testifying in his behalf and that part of his testimony on which he relies as sufficient to take case to jury was of responses to leading questions, those responses are to be considered as of such depreciated value that they should be referred to more dependable parts of testimony together with explanatory facts which are undisputed and thereupon construing his entire testimony as a whole, if it is fairly manifest that his testimony amounts to no more in probative force than a scintilla of evidence, a peremptory charge against him is proper.
3. TRIAL.
While the "scintilla rule of evidence" which literally means the least particle, or the slightest trace, is not recognized in Mississippi, the Supreme Court has not meant to hold that if there be slightly more than the least particle, or a particle more than the slightest trace, this will be enough to avoid the rule.
4. TRIAL.
When all testimony in behalf of litigant is taken as a whole and is considered as if undisputed, and that testimony is reconcilable in essential features with material undisputed facts and when so reconciled and taken together with undisputed facts is of such substantial nature that impartial men of sound judgment could reasonably believe it, and prudently act thereon, a peremtory instruction should not be granted against him.
APPEAL from the circuit court of Warren county HON. R.B. ANDERSON, Judge.
Dabney Dabney, of Vicksburg, for appellant.
The court erred in directing a verdict for the plaintiff, appellee. The circuit court erred in affirming the judgment of the county court.
There was a disputed question of fact that should have been presented to the jury. Williamson's testimony is to the effect that he was to be paid his commission as soon as he procured a party ready and able to make the loan. Thomas' testimony is to the effect that unless he could make use of the money he was not liable to pay Williamson a commission.
It appears from the testimony of the appellant that he made it clear to the plaintiff that unless he could arrange to take up the loan with the Greenville Bank he would not have any use for the loan. It further appears that Mr. Williamson at that time knew that the loan could be arranged for, but that Thomas had not committed himself definitely to accept the loan. On the strength of Thomas' testimony it is clear that there was no meeting of the minds up to that point. Now some of this testimony is contradicted by Williamson. But nevertheless Thomas pleaded that the agreement was dependent on a condition precedent and he has proven this condition sufficiently to have had his case submitted to the jury. We submit that it was error for the court to have directed a verdict for the appellee, and the cause should be reversed and remanded for a new trial.
Wm. I. McKay, of Vicksburg, for appellee.
It goes without saying that the absolute duty and burden rested upon appellant to do two things, both sufficiently to arrange or plead and also sufficiently to prove a legal defense. The appellant's evidence does not show or support any legal defense. The sum and substance of appellant's testimony, with all fair and reasonable inferences therefrom, is to the immaterial effect that appellee knew that appellant would not want the new loan if the old loan could not be taken at a profit satisfactory to appellant. But there is no proof whatever in appellant's testimony that appellee agreed that he was to have no commission if the old loan could not be taken up on terms satisfactory to appellant.
The testimony of the appellant himself does not tend to support, but completely disproves, the unpleaded defense that appellee agreed not to charge any commission for his services in finding and arranging for the new loan, if appellant should thereafter decide not to take up the old loan for economical considerations.
In a majority of the jurisdictions wherein the question has arisen, it has been held that where each of the parties to an action requests the court to direct a verdict in his favor, and makes no request that the jury shall be allowed to determine any question of fact, the parties will be presumed to have waived the right to a trial by jury, and to have constituted the court a trier of questions both of law and of fact.
18 A.L.R. 1433; 69 A.L.R. 633; Share v. Coats, 29 S.D. 603, 137 N.W. 402.
As to the questions to be considered by the reviewing court in cases involving a verdict directed by the lower court following requests therefor by both parties, the decisions and statements, while more or less of the same general tenor, are so various and of such different phrasing that it is almost impossible to construct any general rule. However, it may be said that a verdict directed by the court has the same conclusive effect and is governed by the same rules as in one rendered by a jury.
Bank v. Seldomridge, 153 C.C.A. 147, 240 Fed. 111, 249 U.S. 1; Rice v. Bennett, 29 S.D. 341, 137 N.W. 359; Section 577, Code of 1930.
If we were to take some two or three of the responses by the appellant to leading or suggestive questions by his attorney and consider them as if detached from his entire testimony, and from the facts which are undisputed, it might be deemed that there was enough in some of his responses, so made, to take the case to the jury. The general rule is, however, that in determining whether the evidence make a real and substantial issue of fact, the whole of the evidence in behalf of the party who insists that it is sufficient to go to the jury, together with the undisputed facts, and not merely certain selected parts thereof, is to be considered. A detached part when separately considered might have a particular meaning, but when taken with all the other parts would mean something else. 64 C.J. p. 444, and cases under note 33.
And when, as here, the only witness introduced, or who gave any testimony in behalf of one of the parties litigant was that party himself, and that part of his testimony on which he now relies as sufficient to take the case to the jury was of responses to leading or suggestive questions by his attorney, those responses are to be considered as of such depreciated value that they should be referred to the other and more dependable parts of his testimony, together with those of the explanatory facts which are undisputed; and thereupon, construing his entire testimony as a whole and by way of reconciliation with the undisputed facts, if it be fairly manifest that his testimony, upon the precise issue in question, amounts to no more in probative force than a scintilla of evidence in his behalf, a peremptory charge against him is proper.
It will be observed that we have used the term "scintilla of evidence." This is an expression which long ago found its way into the law books, perhaps for the want of a better word. But it was an unfortunate choice from the beginning, because literally it means the least particle, the slightest trace. We have recently had occasion to observe, without elaboration, that the scintilla rule of evidence is not recognized in this state, Mutual, etc., Ass'n v. Johnson, 186 So. 297; but we have not meant to say that if there be slightly more than the least particle, or a particle more than the slightest trace, this will be enough to avoid the rule in this state as to a scintilla of evidence. The attitude of our jurisprudence has been so far away from any such a conception of the scintilla rule that in at least three opinions of this court, Wooten v. Mobile Railroad Co., 89 Miss. 322, 42 So. 131, Clark v. J.L. Moyse, Miss., 48 So. 721, McFadden v. Buckley 98 Miss. 28, 53 So. 351, it was said that if, upon the evidence, it would have been the duty of the court to set the verdict aside, a peremptory charge would be proper.
It is true that the unguarded expressions in the three cited cases did not accurately state the law upon the question of the propriety of a peremptory instruction; but they show, and are cited to show, how far away this court has been from any such notion of the meaning of a scintilla of evidence as the technical definition of that term would imply. The actual state of our law on the subject of the allowance of the peremptory instruction is disclosed in Fore v. Alabama V. Railway Co., 87 Miss. 211, 39 So. 493, 690; Alabama Great Southern R. Co. v. Daniell, 108 Miss. 358, 66 So. 730; Newton v. Homochitto Lumber Co., 162 Miss. 20, 138 So. 564; Mobile O.R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Justice v. State, 170 Miss. 96, 154 So. 265; Fore v. Illinois Cent. R. Co., 172 Miss. 451, 159 So. 557, 160 So. 903; and Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80.
A summary of these latest cases, as well as of numerous others going back almost to the beginning of the judicial history of this state, is that: When all the testimony in behalf of a party litigant is taken as a whole and is considered as if undisputed by the other party, and that testimony is reconcilable in essential features with the material facts which are undisputed, and when so reconciled, and taken together with the undisputed facts, is of such a real and substantial nature that impartial men of sound judgment could reasonably believe it, and prudently act thereon, and thence it furnishes a factual basis adequate to sustain the case of the party, a peremptory instruction should not be granted against him. But if the testimony in behalf of the party does not measure up to this established standard, it is insufficient and therefore is but a scintilla, as that term is to be understood in our law. See the recent opinion of the Supreme Court of the United States on this subject in National Labor Relations Board v. Columbian etc. Co., 59 S.Ct. 501, 83 L.Ed. 660.
Under the record we think that the case here was one in which the scintilla rule was properly applicable, and that the action of the trial judge in granting the peremptory instruction was correct.
Affirmed.