Corner v. Pendleton

Tuck, J., delivered the opinion of this court. We are of opinion that the point made by the first exception, as to the admissiblencss of the collection book offered by the ³⁴⁵ plaintiffs, was properly ruled against them. The failure on the part of their clerk to enter collections in the book was wholly irrelevant to the issue in the cause, which was whether Rogers had lost the plaintiffs’ money at play with the defendant. The offer concedes the necessity of proving that he had collected money of the plaintiffs’ before the book could be used.

Of what avail then the omission to enter the sums collected could be after its receipt by the clerk had been proved, we are at a loss to conjecture. But suppose it had appeared by the book that these sums were entered, would that have affected the plaintiffs’ case? Certainly not. He might still have recovered if he had traced the money to the defendant’s possession.

In either aspect, the effect of producing the book would be the same, and not tending to prove the issue it was well rejected. The second exception embraces four prayers offered by the plaintiffs, all of which were rejected. The reason assigned here for the refusal of the first of these prayers is, that there was no evidence legally sufficient to warrant the jury in finding, that Rogers lost the plaintiffs’ money with the defendant. If this proposition be maintained, the defendant’s first prayer in the third exception was properly granted.

In many cases it is very difficult to define the line which separates the province of the jury, in deciding facts, from the power of the court to withdraw the case from their consideration altogether, on the assumption, that the evidence, if believed by the jury, is not legally sufficient to prove the issue sought to be established. If the right to recover depends on several distinct propositions of fact and the party fails in either, it is a case of total failure, in the language of the law; and this may occur, not only where there is no evidence whatever as to one or more of the propositions, but where it is so slight and inconclusive that no rational, well constructed mind, can infer from it the fact which it is offered to establish, (Cole vs. Hebb, 7 G. & J., 20,) and the jury would be left to draw deductions from wild speculation and conjccture. Ibid., 95, Farmers Bank vs. Duvall. Considering that juries are designed for the trial of issues of fact, it would perhaps have been safer if courts had ³⁴⁶ contented themselves with interfering only in those cases where there was an absolute want of evidence as to all or any one of the propositions necessary to be proved, leaving to the jurors the right to decide in all cases where any evidence was offered tending to prove the matters in dispute.

The court’s control over verdicts by the power to grant new trials, would, we think, be. a sufficient security against abuse of authority by the jurors. But as we find this to be the established law in this State and elsewhere, substituting in such instances the judgment of the court for that of the jury, it is our duty to apply it in the present case, unless the record shows that the evidence offered leads to the conclusion, as matter of fact, that the money collected by Rogers passed to the possession of Pendleton, at his gaming-table. That Rogers collected money for the plaintiffs during the time that he was in the habit of visiting the defendant’s rooms there can be no doubt, but that this money was lost there is not apparant. If it had been proved that during this period of time Rogers had no other money from any source, the inference would be reasonable, that this money only could have been gambled by him.

But the evidence does not go to that extent. It shows that ((he possessed no means whatever and that he had not one cent,” without defining the time to which this statement of his condition was intended to apply. The