920 MCGEHEE & COMPANY V. FULLER. [169 .MCGEHEE & COMPANY V. FULLER. , Opinion deliVered Novdmber 23, 1925. 1. APPEAL AND ERBOR 7 –CONCLUSIVENESS OF VERDICT.—In testing the sufficiency of evidence to . support the verdict, the testimony must be viewed in the light niost favorable to the party obtaining 'the verdict. 2.- 'WASTER AND SERVANT—BREACH OF 'EMPLOYMENT—DAMAGES.—Evidence held to sustain verdict in favor of defendant on his counterclaim for damages for plaintiffs' breach of contract of employment to ibuy cotton fOr . plaintiffs on a cominission basis. 3.. MASTER AND SERVANT—BREACH OF EMPLOYMENT—EXPENSES IN--'cuRRED. Evidence held to justify an instruction upon the theory • that, .in employing defendant to buy cotton on a commission bag is, 'plaintiffs also agreed to pay all expense connected with the buying , of .the .cotton. • APPEAL AND ERROR— INSTRUCTION ADVISING MINORITY OF JURY TO * vrELD TO MAJORITY.—An instruction ihat, if a ,majority of the • jury should be foi the defendant, the minority ought to doubt the correctness of their judgment- and distrust the weight of. • the evidence which fails to carry conviction to the minds of their. • fellows, was erroneous and prejudicial, as 'authorizing the -minor-• ity to yield to the majority. _ • Alipeal froth Seba -stian Circuit . COurt, Ft. Smith 'District ; John E. Tatum, Judge ; it'eversed. - STATEMENT. OF FACTS. • J. F. McGehee ,& Company sued- G: N. Fuller to recover . the sum . of $1,13.8.97, ,and the accrued interest alleged to *be due them by the defendant upon a promissory note. Fuller , filed an answer,-in . which the admitted the' execution of the note, and.as defense to The action ,alleged that the plaintiffs had broken a contract with him whereby he 'was damaged in a sum largely in excess of the amount of the note. By way of cross-complaint, Fuller alleged that he had been employed by the plaintiffs, J. F. McG-ehee & Company, N1 7. ho were engaged in the cotton business in Fort Smith, Arkansas, to buy cottOn for them in the lown of Mansfield, Arkansas, upon a commission of one
ARK.] MCGEHEE & COMPANY V. FULLER. 921 dollar per bale; that the plaintiffs broke said contract by refusing to accept 152 bales of cotton bought for them by the defendant, .and that , the price. of cotton declined to such an extent that he lost $3,569:44 npon the price, of the, cotton i. . , ancl -in addition..certain items. of expenses which are itemized. • . . The case was tried before a jury, which returned, a verdict in favor of the defendant, and fromthe judgment rendered, the plaintiffs .have duly prosecuted .s an appeal to this court. . A. A.• • ," McDonald and Warner,: Hardin & Warner, for appellant. • Holland,. Holland & Holland, for appellee. HART, J.. (after stating:the facts). Th : e first assignment of error is that the evidence:is . not. legally sufficient to sustain" the yerdict. . In testing the sufficiency of the evidence to support the verdict, the-testimonymnst be , viewed inthelight most favorable to the Partyobtaining . the verdict; • • Hence it is not necessary to abstraet:the evidence lot , the plaintiffs. It is sufficient to say : That:they introdueed the: note sued on in evidence, and that their Owntestimony contradicted in eVery material respect the-'evidence.for .the defendant. According . to' the , teStirnony , of 'the defendant; he 'Was engaged in the meicantile•bnsiness at Mansfield; Arkan-sas, and entered iitfo a contract With the plaintiffs to buy cotton for them for a commission of-One 'dollar per bale. Under the Contract -the plaintiffs each day- gave him a price to be paid for the . cotton, 'and'at night the defendant reported the 'number . of, bales bought and the price paid. He bought altogether for the . plaintiff§ unde'f the contract something-like 375,bales Of cotton, and the- plaintiffs received all' 'of it; . except 152 bales. The defendant testified that he 'bought this Cetton for the plaintiffs. in compliance with their contract, aha that, withont any reason therefor the plaintiffs refused . to ,:re-• ceive it. The price of cotton- declined. The' defendant testified in detail as to the , damages Suffered:byhith on
922 MCGEHEE & COMPANY V. FULLER. [169 this : acconnt, and according to his testimony his .damages amOunted to considerably more than $3;000: I The evidenCe, if believd , by the jury, warranted it in•returning a•verdict in favor 'df • the defendant. • The second assigninent of error is that' the court erred in instructing the jury that, in arriving •at the-damages, it might consider whether or not the plaintiff had agreed , to pay'all expenses'cOnnected virith the buying of the 'COtton. :. The objection made to this part' of Me instruction is that there was no testimony upOn which to base it; 'and that oh this account . it was calculated to mislead and confuse the jury. We can riot agree with counsel in this contention. On, this pOint we quote from the : testimony of ' the defendant the following: "Q. He l was' to pay you a dollar a bale? A. Yes, for all the cotton I bought and any other!expenses, * and he was to get all the cotton.I bought/, 'down there and pay me a dollar •a bale coinmisSion, ancl was to guarantee the weights: • Q.- He was to furni61 yOn'a limit and.pay.iyou $1.00 a) bale?' A. Yes; sir. /Q. ;And give you a lianit every day? A. .•Yes,' sir. Did you dnvoice•the cottoitto him at the limit, did you \ri:'.vOice it tO him at the price ,at which you :bought It? A. in-;voiced it at his limit " ,,In . addition to this the defendent testified as Tto the expenses incurred by Therefor, tthe contention of plaintiffs that the instruction is abstract is not well taken. . • • The next assignment of; error is that the court erred in giving the jury the. following •instruction:: i"•Cautionary . instruction: The court instruCts the jury that the only mode provided by our Constitution and laws for-deciding queStions of facts is by the verdict of the' jury: In.a large proportion of Cases, and perhaps, strictly speaking in all cases, absolute Certainty can not be attained or expected: Although the verdia to* which a juror agrees must, of course, be his own verdict, the result ofhis OWn ConViction i and not a mere acquiescence in the opinion of his fellows; yet, in order to bring twelve
ARK.] MCGEHEE & COMPANY V. FULLER. 923 minds to a unanimous result, you must examine: the questions submitted to you with candor..and a proper regard and deference to the opinions of each other. :You should consider-that you are selected in the; same maimer and from the same source froni which -any future .jury must be, and. there is no reason . to suppose that the case will ever be submitted to twelve., nren more intelligent, more impartial, or more competent to decide it, _or that more clearer evidence Will be , prOdnced . on the:one side than on . the .other. " And, with thiS view, il ' is your dutY to decide the case, if you can Conscientiously do so._ To -conferring together, yen ought 'to pay proper respeef tO each Other's opiniens, and listen with an imposition to be 'convinced to each other's' arguments. And, on the other hand; if much the -larger number of your panel are for the plaintiff, a - dissenting jfiror shonld consider whether doubts in his mind -as to the correctness,of their conclusions are reasonable in.view of the fact that doubts which you have make -no. impression upon the Minds -of the other men, equally honest, equally intelligent -with Yourselves, and who have heard the Same evidenCe with the same attention, With: equal: desire •to -arrive at the truth :and under the sanction Of the same oath, and; on the other hand, if g majerity , are for the defendant, the minority Ought to --doubt the ; correctness Of their :judgment which is not concurred in by Most of those with whom they are associated :and distrust the weight or sufficiency of that evidence:which fails to carry conviction to the -minds of their- fellows:-'? • An :approval of the iriStruction- Is asked on the ground that the concrete part of it-is substantially a - copy of an instruction upheld in CommOnwealth' v. Tvey, 8 Cush: (Mass.) 1, which has been , generally recognized as a leading case on the Subject. : -, • It is well settled that a jury should examine question submitted to them with due regard to the opinions of each other and should try to reach a harmenions result if they can do so,- under the laws and the evidence
924 MCGEHEE '& COMPAl s :TY . V. FULLER. [169 -inthe case. After all each juror must form . his opinion according -to' his best judgment without any • attempt -on •the part of the court to influence him to render a verdict which is cOntrary to'his conscience under the -law and-the evidence: . Newport v., Railway Co. 58 Ark. 270; St. L. I. -So; Ry.'CO. Carter,•111 Ark. 272; and Simonson v. Lo • v .. ewell, 1 • 18' Ark. 81: . Now, it must be remenibered that an opinion of the court must becOnstrued in accordance . with the . question of law and fact •presented in each particular • case. .It is also well settled . that appellate courts only, reverse. judgments for . errors prejudicial , to the party, appealing. .The Massachusetts . court was considering a criminal case, and the precise* question , for the: court *to determine ma.S . whether el- not the defendant was prejUdiced by the giving of the instruction under consideration. In this view of the matter, the cOurt held that he was not prej: udicedbecanse the instruction; in so far as it . might affect the!rights 'of' the defendant, went . no -further 'than to say that,if any of the jurY differed,-intheir views of the evidence, from. a, large• nuMber of their fellows, • such difference of opinion shmild induce the"minority to doubt the correctness of their own .jndgmentand• to lead them:to re-ekaMirie the facts for the:purpose of revising -their preconceired opinions'. In short,.: it was Said that -the trial 'cOurt did:nothing MOre.than . to present, to the minds of the dissenting jurors a . strong 'motive to unanimity. The concluding part Of the'instructiOn was'not necessary to be considered,' so far as the rigbts of the accused were concerned: Hence it is . apparent that the concluding part of the instruction was' not in the minds of the court in reaching its . conclusion, and its effect in a case where it would be an issue was not decided. The-appeal was taken:by the plaintiffs in this case, and the- concluding part of the instruction was the part which affected their rights. That part of the instruction which they complain of is as' follows,:
• "On the Other hand, if a majoiity.are fOr• thq• defendant, the minority ought to doubt the. correctness . Of their judgment which is not concurred in by most' of 'those with whom they are associated and .distrust• the weight or sufficiency of that evidence which.lails to, carry !conviction to the minds Of their fellows!" . •. ' Now, it is eVident that this ,Part . of the instruction is materially different Tioiri: "AO which jUk.preCedes _it it specifically, tells the jury that if a majority iS for -the defendant, the minority ought •to . doubt the correCtness of its judgment, which is .not concurred in •by its associates and distrust the weight 'of the evidence -Which 'fails to carry conViction" , th . the' -minds of 'their follows. This .Constitutes adVice -by the court -for the-Minority to yield to the majority, if the . majority:is for _the defendant; and this, without considering whether their own . con-elusions are reasonable in the view : of the fact that the majority believes the other way. In other words, that part of the inStrtiction_ Com.- 'plained of advises the minoritY to Yield • to the majority if it is for th , e defendant. Such not the law, and we are of the opinion that the instruction• was inherently wrong . .and necessarily prejudicial to the rights •21f the 'plaintiffs. For the error in giving the' cautionary instrifction, as indicated, the judgment must ,be :reversed, and the cause remanded for a new tr , ial. • , r 1 •
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.