Kansas Pacific Railway Co. v. Kunkel

The opinion of the -court was delivered by

Brewer, J.:

This action was tried and judgment rendered in favor of the plaintiff upon a petition, of which the material allegations are as follows:

“The plaintiff, Jerome Kunkel, complains of the said Kansas Pacific Eailway Company, the defendant herein, for that the said defendant was, on August 18th 1869, and from that time till now has been, a common carrier of, and in the business of carrying, passengers on its railroad, in the state of Kansas, in the county of Jefferson, for pay; that on said 18th of August 1869, the said defendant undertook and promised to carry this plaintiff from the city of Topeka, in the county of Shawnee, in said state of Kansas, to the town of Medina, in said Jefferson county, for the sum of one dollar, which said sum was then and there duly paid to the said defendant by this plaintiff, and this plaintiff went on board the car or carriage of the said defendant, on and under and by virtue of said agreement, and was conveyed in said carriage from the said city of Topeka eastwardly towards said town of Medina; but, in violation of its said contract and agreement, the said defendant refused to stop its said carriage for this plaintiff to get down at said town of Medina, but carried this plaintiff past the said town of Medina, and ordered and directed this plaintiff to get down from said carriage more than a mile from said town of Medina, where *165 there was no regular stopping-place or station for passengers to get on or off the train, and ho platform or other convenience to step on; and when this plaintiff attempted to dismount from the said carriage, in obedience to the said order and direction of the said defendant, the said defendant, without notice to this plaintiff, violently and suddenly started their said carriage and with great force threw this plaintiff down from the said carriage to the ground, and wounded, bruised and beat him, this plaintiff, and greatly injured him by said wounds and bruises; of which injuries the plaintiff has not yet recovered, to the damage of this plaintiff in the sum of five thousand dollars.”

i Amending pleadings. Several questions are presented; and first, it is alleged that the court erred in permitting -an amendment of the petition, and in not sustaining an objection of the defendant to the proposed amendment. The petition as originally filed was substantially and almost word for word identical with that we have quoted, except that the fare alleged to -have been paid was three dollars, and the date of the transaction was given as “March 20th 1869.” When the case was called for trial, objection was made to the introduction of any testimony, and the cause of action stated in the petition being apparently barred by the statute of limitations, the objection was sustained. Leave was granted to amend, and the present petition was filed over the objection of the defendant. By this the injüry was alleged to have been received at a date less than three years before the filing of the petition, and therefore it disclosed a cause of action not barred. Was this error? On the trial the plaintiff testified to receiving his injuries on the 17th or 18th of August 1869; and a witness who was with him at the same time testified to the matter as happening in August 1869; and each testified to paying one dollar, the usual fare from Topeka to Medina. Now the amendment of pleadings is largely within the discretion of the trial court, and there must be something to indicate that such discretion has been abused before a reversal will be ordered because of the granting of leave to amend; Taylor v. Clendenning, 4 Kas. 524; Davis v. Wilson, *166 11 Kas. 74.

tion of action. It certainly is no abuse of discre^ion permit the correction of a date; Wilson v. Phillips, 8 Kas. 211. And this it seems is all that the amendment amounted to. Counsel labor ingeniously to show that a cause of action not barred was, by the amendment, substituted for one barred; but we are not convinced by their reasoning. It is affirmatively shown that plaintiff was injured, as claimed, in August. It does not appear that he was ever so injured before; and there is surely no presumption that the defendant ever wronged the plaintiff twice in the same place, and under like circumstances.

8. Nature of action. A second position of counsel is, that the cause of action is not one arising from contract, but is founded upon tort, and that therefore it was barred any way, even if August instead of March was the time of the injury. This claim cannot be sustained. While the distinction between actions on contract and those for tort is plain and broad, yet, as is well said in the case of Staley v. Jameson, 46 Ind. 159, on which counsel mainly rely, and in which is quite a full discussion of the question, it is not always easy to determine from the allegations of the petition in which class the action must be placed; for contracts are often alleged in actions which clearly sound in tort, and as often tortious acts and conduct of the defendant are averred in actions purely ex eontraetu. And often the plaintiff has his election upon the same state of facts, whether to bring an action ex eontraetu, or one ex delicto. Here the pleader alleges that the defendant was a common carrier, that it made a certain contract of carriage, and received its pay therefor, and then alleges that defendant broke said contract, and how it broke it. True, in showing how defendant broke the contract it discloses wrongful acts done by defendant; but still the manifest gist of the action is the breach of the contract, and the tortious acts are simply the manner of the breach. The case was trie.d in the district court upon the theory that it was an action ex eontraetu, and the first briefs of the learned counsel were prepared upon the same understanding; and this was correct.

*167 A further complaint is, that the court refused to give this* instruction:

“7. It is the duty of the jury to reconcile, if possible, the-testimony of witnesses, so as to make them all testify truly but if in this cause there is an irreconcilable conflict in th& testimony of witnesses, and plaintiff is in conflict with the-testimony of disinterested witnesses, the law rather presumes that the plaintiff has been influenced by his interests to speak untruly, and that the disinterested witnesses are entitled to the confldence of the jury. Disinterested witnesses are entitled'to more credit than interested witnesses.”

The court had at the instance of the defendant already given this instruction:

“ 6. The plaintiff is an interested witness in this cause. He is interested in the whole amount of any possible recovery, and in' all the costs in the cause. His credibility is directly in question. Interested witnesses may be more readily suspected of prevaricating, or even testifying falsely in their own behalf, than witnesses who have no interest in the cause.”

4. credibility of witness; instructions, It had also in its general charge given the law in substantially the same language. In this we see no error. The' court properly called attention to the plaintiff’s . , -ii/v> r»i. * . . interest, and the effect of such interest upon his-credibility; and that was as far as it was under any obligation to go. It was not for it to say directly, or by manifest implication, that it was the duty of the jury to believe one witness rather than another. Matters affecting the credibility of a witness are proper testimony, and may properly be noticed — indeed, ought to be noticed by a court in its charge. But care must be taken that these matters are not laid down in the form of such imperative rules as to extort a. verdict which is not in accord with the honest belief of the jury. Tell a juror that he ought to believe a disinterested rather than an interested witness, naming him, and he may return a verdict to say so, when in fact he honestly and sincerely believes the other way, and upon all the circumstances justly does so. It is the jury, and not the court, whose province it is to determine the credibility of a witness, to believe or disbelieve him; and it is the actual belief which. *168 is sought to be obtained. Hence, instructions which make it matter of law to disbelieve, are wrong. Shellabarger v. Nafus 15 Kas. 547. So also, instructions whose apparent purpose and tendency are to compel belief, or disbelief, are erroneous; and generally any unnecessary repetitions or specializations in instructions which seem to manifest an insisting by the court on the belief or disbelief of a witness should be avoided. We do not decide that the instruction refused is of itself too strong, op that it would in every case be error to give such an instruction. But we do hold that having given at the instance of the defendant the law as stated in the 6 th instruction, it was not error to refuse to repeat it in the strong and positive terms of instruction No. 7.

,. 0, Verdicts, when not disturbed. A final error complained of is, that the verdict is against the evidence. The case comes clearly within the rule so often declared by this court, that where there is clear and positive testimony sustaining every essential fact, and the verdict has received the approval of the trial court, this court ^ rr 7 w}]p n0£ interfere, even though the testimony seems to greatly preponderate the other way. In other words, in cases brought here on error from a trial upon oral testimony, this court is not a trier of questions of fact. We might therefore simply rest this opinion upon the statement, that the plaintiff’s testimony positively and clearly shows all the facts necessary to sustain the verdict; that it is in most of the principal matters positively corroborated by one who appears to be an entirely disinterested witness, and as to the matter in which it is chiefly contradicted receives strong support from another witness also apparently disinterested. But as counsel earnestly challenge the rule, we may be pardoned if we tarry a moment or two upon it. And first, we may remark, that it is a rule uniformly recognized from the first existence of this court down to the present time. In the very first volume of Kansas Eeports, in Backus v. Clark, p. 303, the court reversed a judgment because against the evidence, taking pains to say that it did so because there was a total failure of proof upon one essential fact, and that *169 when there was such a total failure a question of law was presented calling for the action of the reviewing court. The implication was very clear. ’ The doctrine has been affirmatively announced time and again, since then, and in almost every volume of the reports. See among others: Bayer v. Cockerill, 3 Kas. 294; Ermul v. Kullok, 3 Kas. 499; U. P. Rly. Co. v. Convers, 4 Kas. 206; Blair v. Fields, 5 Kas. 58; Rose v. Williams, 5 Kas. 488; Pacific Rld. Co. v. Nash, 7 Kas. 280; School District v. Griner, 8 Kas. 224; Ulrich v. Ulrich, 8 Kas. 402; Ruth v. Ford, 9 Kas. 17; Luke v. Johnnycake, 9 Kas. 519; K. P. Rly. Co. v. Montelle, 10 Kas. 126; St. Jos. & D. C. Rld. Co. v. Chase, 11 Kas. 47; Brewster v. Hall, 12 Kas. 161; A. T. & S. F. Rld. Co. v. Stanford, 12 Kas. 354; Bridge Co. v. Murphy, 13 Kas. 40; K. P. Rly. Co. v. Salmon, 14 Kas. 528. In the early case of Ermul v. Kullok, 3 Kas. 501, Chief Justice Crozier says: “It is a well-established rule of. this court,- that the verdict of a jury will not be disturbed if there is any testimony to sustain it.” The rule has not at any time been stated in stronger language by any member of this court. Nor is this court the only or the first court to announce this doctrine. In Rogers v. King, 12 Ga. 233, the supreme court say: “ If there was any evidence to justify the verdict, we would not disturb it.” And the same proposition was sustained in Alfred v. The State, 6 Ga. 483; Lewis v. Long, 20 Ga. 568. The supreme court of Arkansas used this language: “There not being a total want or failure of evidence to sustain the verdict, this court affirms the judgment;” Bennett v. The State, 13 Ark. 694. And again, “Though the verdict of a jury be contrary to the judgment of the appellate court, it will not be set aside unless there is a total want of evidence to sustain it;” McDaniel v. Parks, 19 Ark. 671. See also Mains v. The State, 13 Ark. 285; Lindsay v. Wayland, 17 Ark. 385; Hill v. Jayne, 18 Ark. 396; M. & St. F. Plank Road Co. v. Bauere, 21 Ark. 306. In California, the supreme court thus lays down the rule: “The appellate court will not disturb the verdict when there is any evidence to support it;” Escolle v. Merle, 9 Cal. 94. In Illi *170 nois we find, “The court will rarely if ever disturb a verdict when there is anything in the record tending to support the finding of the jury;” Young v. Silkwood, 11 Ill. 36; Gallup v. Smith, 24 Ill. 586. In Indiana, “A new trial will not be granted where the evidence is conflicting, if there is enough in the record taken by itself to sustain the verdict;” Scobey v. Armington, 5 Ind. 514. In Missouri, “When the verdict of a jury comes here indorsed by the refusal of the court which tried the cause to grant a new trial, this court will not interfere on the ground that the evidence does not support the verdict. Jurors are the appropriate judges of the facts, as the courts are of the law;” State v. Anderson, 19 Mo. 246. And again, “The refusal of a court to grant a new trial where a motion is based on alleged absence of any testimony to warrant a verdict, is not error, unless the preponderance of evidence against the verdict is so strong as to raise a presumption of prejudice, corruption or gross ignorance on the part of the jury;” Price v. Evans, 49 Mo. 396. In Kentucky, “This court will not reverse on the ground that the verdict sustained by the inferior court was contrary to evidence where there was any evidence conducing to maintain it;” Bagby v. Lewis, Adm’x, 2 T. B. Monroe, 76. In Tennessee, “The court of errors will not grant a new trial if there be any proof by which the verdict can be sustained;” Dodge v. Brittain, Meigs, 84. And again, “ It is a well-settled rule of practice in the supreme court, that in civil cases a verdict will not be disturbed if there be any evidence to support it, however unsatisfactory that evidence may appear by the record;” McKinney v. Craig, 4 Sneed, 577. In New Hampshire, “ Where there is evidence competent to be considered by a jury, and the court submit it for their decision, the verdict will not be set aside, although the court may be of opinion that the evidence was insufficient to prove the fact;” Wendell v. Moulton, 26 N. H. (6 Foster) 41. In Michigan, in a case taken by certiorari from a justice of the peace to the circuit court, “ If there was evidence before the justice to prove every fact necessary to sustain the judg *171 ment, the. circuit court cannot reverse it, however much it may be dissatisfied with' the conclusion of the justice or the jury. A-ll it can do is to inquire whether there was a total want of evidence before the justice to prove some fact that should have been proved to sustain the action;” Welch v. Bogg, 12 Mich. 43. In New York, “The verdict of a jury cannot be interfered with except when the evidence is wholly insufficient to sustain the verdict;” Colt v. Road Co., 33 N. Y. Superior Ct. 189. In Iowa, “Always refusing to interfere when there is evidence upon which the verdict finds reasonable support, even when if sitting as jurors we would without hesitation have found the other way upon the evidence;” Carlin v. Road Co., 37 Iowa, 323. But it is useless to multiply citations. Scores and scores of cases can be found in which similar language has' been used by appellate courts. And it must be conceded it is also equally true, that there are multitudes of cases in which appellate courts have reversed the judgment of lower tribunals because contrary to the evidence, and in which they have said that while there is simply a conflict in the testimony, yet it is apparent that the verdict or finding was clearly against the weight of the evidence, and manifestly unjust, and therefore it was their duty to set it aside. All that we design by these citations, and it will be noticed that they are nearly all from the earlier reports of the several states, is to show, that in this rule of decision we have been guilty of no “innovation;” we have discovered no new thing, but are simply walking super antiguas vias. Into a discussion of the wisdom of the rule, we do not now care to enter. It has been commented on time and again in opinions filed by this court; and while it may sometimes result in injustice, yet we are confident a different rule would tend to far greater injustice and wrong. TestL mony on phper, is-not like testimony from the lips; and when twelve jurymen who hear the living voice, and see the man who utters it, believe one witness and disbelieve four, and the judge who.^has the same opportunities of judgment declares that he thinks that they ought to have so believed *172 and disbelieved, it seems very like trifling with the sacredness of jury trials for us who know nothing but the written story of what was said and done, and that story too often imperfect and incomplete, to decide that all this is wrong, and that jury and judge ought to have believed and found the other way. But counsel contend that trial judges in this state imagine the same rule governs their action as ours. We do not positively know how this may be. Two of our number have had experience °as trial judges, and never so understood the law; and we have yet to meet a district judge who has so expressed his understanding thereof. The functions of the two are widely dissimilar. The one has the same opportunity as the jury for forming a just estimate of the credence to be placed in the various witnesses, and if it appears to him that the jury have found against the weight of the evidence it is his imperative duty to set the verdict aside. We do no,t mean that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their .province to. settle questions of fact; and when the evidence is nearly balanced, or is such that different minds would naturally and fairly come, to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding of the jury is to be upheld by him as.against any mere doubts of its correctness. But when his judgment tells him that, it is wrong, that whether from mistake, or prejudice, or other cause, the jury have erred, and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting aside the verdict, and remanding the question to another jury. It was a fear, in view of the meagerness of the testimony, that this duty had not. been fully recognized, that drew from this court the expressions it used in the two cases which counsel especially criticise. Whenever on the other hand a case reaches this court upon the record, ■ and it appears that the trial court has, by overruling' a motion for a new trial, approved of the verdict, it is and .must be taken as its certificate that the verdict is either *173 fully in accord with its belief upon the testimony, or else that there was such a fair and reasonable doubt as to the weight of the evidence, pro and eon, that honest and intelligent minds might fairly differ in their conclusions, and that therefore the verdict of the jury should be accepted as just. We have therefore, not the witnesses, but the finding of the jury prima fade right, and also the approval of the only judge who has anything like full opportunities of knowing whether it was right. Under those circumstances it should be a very clear case before a reviewing court should interfere. The due administration of the law demands, and in the long run the most satisfactory and the most complete justice will be secured by leaving the settlement of questions of fact to the tribunals which see and hear the witnesses.

The judgment will be affirmed.

All the Justices concurring.