I find myself unable to concur with my brethren in the opinion and judgment just rendered. *Page 325
The nature and history of the case, as well as the substance of the evidence, are substantially reflected by the opinion. A few further details may be appropriately added.
The assured never made a vow to Allen. Deputy Coroner Meade, on the testimony of Dr. Irwin and Cassidy, found that the death was by morphine. Steadman was in the assured's room about 10 o'clock a. m. of the day of the death; noticed on the bureau a small, widemouthed, empty bottle, labelled "Quinine;" looked around the room with great care, and found no other evidence of medicine. Dr. Beasley had treated cases of apoplexy, and had been in contact with those of morphine poisoning. Was familiar from personal experience with the effect of an overdose of morphine. Intoxication by whisky was dangerous to one susceptible to apoplexy. There was evidence tending to show that the victim of morphine poisoning could usually be aroused; but not so in cases of apoplexy. Also, that without an autopsy it would be impossible to determine the cause of death in a case of the symptoms stated; that in the last stages, even with knowledge of the external appearances, it was very difficult to distinguish between morphine poisoning and apoplexy. The assured had come at night to the hotel more than once during the two weeks next preceding his death, disabled more or less by whisky, and a pint bottle containing a little whisky was found in his room; but no morphine was found or traced in any way.
The controlling assignment of the appealing defendant is in these words: The verdict of the jury was wholly unsupported by the evidence, in that defendant established by the manifest weight of the evidence, that Richard Hayward did die by his own act, within two years from the date of the issue of the policy."
The order granting the writ of error involved the assumption that the case was within the meaning of subdivision 8 of article 1011a, Revised Civil Statutes, authorizing us to bring here by such writ the reversing judgment of the Court of Civil Appeals, which, though remanding, "practically settles the case;" and the further assumption, that the question presented to us by the application was one to which our jurisdiction extended.
I am still pursuaded that the writ was properly granted, and that the case should now be decided upon its merits.
The application for the writ avers in unqualified terms, that the reversing judgment is of the character defined in the subdivision cited, and I find neither in the opinion nor in the judgment of the Court of Civil Appeals, nor elsewhere in the record, anything to warrant a doubt that the judgment falls within that definition.
In the single fact of the existence and authenticity of the note discovered on the table in the dead man's room, the Court of Civil Appeals finds warrant for reversing the judgment — conceding that, but for that fact, "there would be no reason to disturb the verdict." The testimony as to this decisive fact is by deposition; the fact itself, when *Page 326 related to its occasion, place, and attending circumstances, is of such kind that knowledge of it must have been confined to few persons, and all known or probable sources of information seem to have been exhausted, and the limit of diligence reached.
It goes without saying, that so long and as often as the case shall be tried on the same facts, and on the declaration of the Court of Civil Appeals of their insufficiency to support a verdict for him, the plaintiff must fail, and that any effort to prosecute the suit to favorable judgment is foredoomed.
It is said now, however, that the decision, or judgment, of the Court of Civil Appeals is on a question or questions of fact, and that we can not disturb it, although we may be of opinion that such conclusion is erroneous.
By the Constitution, the appellate jurisdiction of this court extends to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction, and the decisions of the courts last named are conclusive on all questions of fact brought before them on appeal or error. Const., art. 5, secs. 3, 6.
By statute, the judgments of Courts of Civil Appeals are conclusive in all cases upon the facts; petitions for writs of error must show that the errors complained of arose upon questions of law, and that their determination was necessary to the decisions assailed; and in all cases of writs or certificates of error to the Supreme Court the trial shall be only upon the questions of law upon which the writs were allowed. Sayles' Supp. Rev. Civ. Stats., arts. 1068 (subdiv. 3), 1011a, 1011b, 1016b.
At and long before the time of the creation of the present judicial system, it was the rule in all common law jurisdictions, that in controversies between litigants on issues of fact determinable only by consideration of and deductions from conflicting evidence, the parties were entitled to trial by jury, and that the verdict of the jury in such case was final, and not subject to reversal by an appellate court.
Such had been the rule of this court time out of mind. There was, it is true, nothing in the express terms of Constitutions or statutes that inhibited the court's supervision and correction of verdicts, and it perhaps possessed the sheer power of overruling even such verdicts as resulted from the jury's consideration of conflicting evidence. There are exceptional cases wherein the court has refused to be bound by verdicts, because, as declared, against the manifest weight of the evidence; but these are believed to be cases not presenting sufficient, though conflicting, evidence. There are also cases exhibiting unmistakable marks of misapprehension or palpable disregard of the evidence on the part of juries, or of such sympathy or prejudice as are inconsistent with the exercise of fair judgment; and in these, too, this court had not hesitated to prevent an obvious wrong by denying conclusiveness to verdicts. The rule, however, as I understand it, was as stated. *Page 327
The practice of the court in its treatment of verdicts, whether upon conflicting evidence, no evidence, insufficient or deficient evidence, or against or contrary to evidence, and the distinction controlling it as an appellate tribunal in the disposition of cases referable to the one of, the other of these conditions, are indicated in so many opinions that even a partial list of them must seem extended: Briscoe v. Bronough,1 Tex. 339; Carter v. Carter, 5 Tex. 100 [5 Tex. 100]-102; Davidson v. Edgar, 5 Tex. 496 [5 Tex. 496]; Hall v. Hodge, 2 Tex. 328; Wells v. Barnett, 7 Tex. 587; Long v. Steiger, 8 Tex. 462 [8 Tex. 462]; Bailey v. White, 13 Tex. 118; Gilliard v. Chesney, 13 Tex. 337; Taylor v. Ashley, 15 Tex. 54; Patton v. Evans, 15 Tex. 365 [15 Tex. 365]; Garvin v. Stoner, 17 Tex. 300; Stewart v. Hamilton, 19 Tex. 100, 101; Chandler v. Mackling, 22 Tex. 42; Humphreys v. Freeman,22 Tex. 52, 53; Baldridge v. Gordon, 24 Tex. 288 [24 Tex. 288]; Howard v. Ray, 25 Tex. 91; Adams v. George, 25 Texas Supp., 376, 377; Powell v. Haley,28 Tex. 56, 57; Willis v. Lewis, 28 Tex. 191 [28 Tex. 191], 192; Stroud v. Springfield, 28 Tex. 676 [28 Tex. 676]; Linney v. Peloquin, 35 Tex. 29; Jordan v. Brophy, 41 Tex. 284; Edmundson v. Silliman, 50 Tex. 112; Mathis v. Obertheir,50 Tex. 330; Zapp v. Michaelis, 58 Tex. 275 [58 Tex. 275]; Railway v. Bracken, 59 Tex. 75, 76; Railway v. Marcelles, 59 Tex. 335-337; Railway v. Schmidt, 61 Tex. 285, 286; Cooper v. Horner, 62 Tex. 363; Jacobs, Bernheim Co. v. Crum, 62 Tex. 417; Block v. Sweeney, 63 Tex. 427 [63 Tex. 427]; Ramsey v. Arrott, 64 Tex. 323 [64 Tex. 323]-325; Railway v. Gilbert, 64 Tex. 541 [64 Tex. 541], 542; Railway v. Smith, 65 Tex. 173 [65 Tex. 173]; Owens v. Railway, 67 Tex. 681; Railway v. Lee, 69 Tex. 560; Stitzle v. Evans, 74 Texas. 600; Oil Co. v. Thompson, 76 Tex. 238; Railway v. Faber, 77 Tex. 154, 155; Floege v. Weidner, 77 Tex. 313, 314; Cooper v. Martin Brown Co., 78 Tex. 221; Easton v. Dudley,78 Tex. 239, 240; Tel. Co. v. Andrews, 78 Tex. 307 [78 Tex. 307]; Barth v. Green, 78 Tex. 681; Letcher v. Morrison, 79 Tex. 243; Clark v. Pearce, 80 Tex. 150; Chase v. Veal, 83 Tex. 335.
It seems to be held now, that the decision of the Court of Civil Appeals upon questions of fact, with respect to which there is conflicting evidence, is final, and not subject to review here. Land Co. v. McClelland Bros., 86 Tex. 187.
This doctrine is not impugned by my contention, that the question whether a verdict is unsupported by the evidence — the question which, as I understand the record, calls here for our decision — is one of law; and that the decision of it by the Court of Civil Appeals is a conclusion of law, and, as such, subject to revision by us.
The assignment maintained is, that the verdict is wholly unsupported by the evidence, in that the defendant established by the manifest weight of the evidence the suicide of the assured, as alleged; and the court declares the verdict contrary to the evidence, and against its manifest weight.
A verdict is unsupported by the evidence, when the evidence, though accorded its full significance, is insufficient to sustain the verdict. In such case there is a deficiency, not a conflict, of evidence; and the *Page 328 jury in rendering the verdict commit error of law, which may be redressed by reversal of the judgment on appeal or error. The question of the sufficiency of the evidence to support the verdict is one of law, and determinable as such by the Court of Civil Appeals, and, upon writ of error, by this court.
A verdict is contrary to or against the evidence not when it follows evidence sufficient to warrant it, although such evidence is challenged and disputed by other evidence, but when the jury misconceive the proved facts, and deduce from them a conclusion which the mind is constrained to reject as indisputably unwarranted by, or, as it is sometimes expressed, repugnant to them. In such case, too, the jury commit error of law subject to correction on appeal, and the issue presented is one of law, as is the judgment resolving it. If the record discloses no or not sufficient evidence to support the verdict, or that, in the meaning of the terms defined, the verdict is contrary to the evidence, this court should affirm the judgment of the Court of Civil Appeals, not because it is based on a conclusion of fact deduced from conflicting evidence, but because it is a correct conclusion of law that there is in the record no or not sufficient evidence to support the verdict, or that the verdict is plainly unwarranted by the facts proved, and the result of misapprehension and perversion of their significance. If the record discloses no or not sufficient evidence to warrant a verdict for the defendant on its single affirmative plea, involving the necessity of its maintenance of the burden of proof, or if there appears sufficient evidence to warrant the verdict rendered for the plaintiff, this court should reverse the judgment of the Court of Civil Appeals, because it sustains an assignment that the verdict is unsupported by the evidence, and thus announces an erroneous conclusion of law as to the existence and legal purport of evidence.
In the trial court, the defendant made express concession that the plaintiff was entitled to recover, unless his right of recovery should be defeated under the defendant's plea that the assured committed suicide by morphine poisoning; and, upon the concession, the defendant assumed the burden of maintaining its plea, and had and exercised the right to open and conclude the case. So the affirmative issue was not the right of the plaintiff to recover, but the right of the defendant to defeat a recovery; and on this issue, the only one made, the defendant was necessarily the actor. The plaintiff must have judgment, unless the defendant could, by a preponderance of the evidence — that is, by the greater weight of credible evidence — persuade the jury that the assured took his life by the use of morphine.
The evidence otherwise being of such nature and potency as to preclude the Court of Civil Appeals from disturbing the verdict, that court fixes on the single fact of the existence and terms of the note referred to as demanding, when considered in connection with other evidence, the reversal of the judgment rendered for the plaintiff, because resting on a verdict contrary to ("unsupported by," is the language *Page 329 of the assignment) and against the manifest weight of the evidence. The fact found by the Court of Civil Appeals is, that the note exists, contains certain words, and is authentic; and in the present state of the record, this conclusion stands unimpeached. The issue is suicide by morphine. That issue is not determined as a fact, unless it is so determined by the declaration of the court, that the note can not be accounted for on any hypothesis consistent with the facts save that of suicide, as and by the means alleged in the defendant's plea. The inference or conclusion by the court from one established fact, that another alleged but disputed fact is proven, because the established fact can be accounted for on no hypothesis, consistent with other disclosed facts, but that of the existence of the disputed fact, is, it seems to me, one of law. It is the result of a judicial test of the sufficiency of the established fact, together with the other disclosed facts, to fix, necessarily and beyond contention, the disputed fact. It is as much, and in the same sense, a conclusion of law as is the judgment of a court, that certain alleged facts sufficiently affirm the issue upon the maintenance of which the pleader's right to relief depends.
No one can say that the note of itself proves the suicide of the assured by morphine; and to say that the note, together with the other disclosed facts, establishes such suicide so indisputably as to preclude adverse hypothesis, is to affirm that there is no or not sufficient evidence to support the verdict — and that, too, in a case requiring no evidence to authorize a verdict for the plaintiff, unless and until his prima facie right to recover, challenged and controverted by the self-assumed and aggressive contention of the defendant, is, by evidence, rebutted and overthrown. To so affirm is to decide a question of law.
Randall v. Collins, 58 Tex. 231, was a third appeal to the Supreme Court. The question was, whether a judgment obtained on citation charged to have been falsely and fraudulently returned as served on the defendant, should stand. Reciting the evidence tending to show that citation had not been served, and observing that it might make doubtful the fact of service, but was insufficient to establish satisfactorily, as was necessary in such case, that defendant was not served, the court said: "This is a case where the jury have erred in matter of law; and notwithstanding this is the third verdict, we think the judgment should be reversed and remanded." That is to say, the finding on insufficient evidence that the defendant was not served with citation was a conclusion and error of law, and therefore reviewable and reversible on appeal. The examination by the court of the evidence on which the verdict rested was necessary to its ascertainment of the insufficiency of the evidence to support the verdict. Had that examination, under the rule then obtaining, disclosed a conflict in the evidence — some "satisfactory," though challenged by other — the verdict would not have been disturbed, being a conclusion of fact on sufficient evidence. *Page 330
So in Gibson v. Hill, 23 Tex. 77. There the claim was that negroes seized on execution belonged to the claimant, who was the son of the execution defendant. The plaintiff pleaded, that the claim was fraudulent and void, and made to delay and hinder creditors. The claimant recovered; the plaintiff appealed, and the judgment was reversed. Another trial resulted as had the first; the plaintiff moved for a new trial, and, failing, again appealed. The judgment was again reversed, because the evidence was insufficient to support the verdict. The court said: "The second trial, upon very nearly the same testimony, resulted in favor of the claimant of the property. We are loath a second time to disturb the verdict of a jury. If the case presented a conflict of evidence, we would not touch the verdict. But in our opinion, this case presents no conflict of testimony, but a deficiency of testimony to support the verdict." Had there been a conflict of evidence — that is, evidence sufficient to sustain the claim of the successful party, although controverted by evidence sufficient to defeat that claim — the verdict would not have been disturbed; because it would have been a finding or conclusion of fact on sufficient evidence, a function properly pertaining to the jury. But since there was a deficiency of evidence, that is, evidence which, though uncontroverted and accorded its full probative force, was still insufficient to support the claim, the error of the jury in its conclusion or verdict was one of law, and therefore subject to revision and reversal on appeal.
Sebastian v. Cheney, 86 Tex. 497, was a suit to recover damages for malicious prosecution. There was a verdict for the plaintiff and judgment thereon in the District Court. Appealing to the Court of Civil Appeals, the defendant assigned as error the refusal to him by the District Court of a new trial, sought there on the claim that there was no evidence to show want of probable cause. The assignment was overruled, and the judgment complained of affirmed. The defendant, as plaintiff in error, renewed his insistence here, contending that the Court of Civil Appeals erred in not sustaining the assignment and reversing the judgment. The court said: "The sufficiency of facts found by the Court of Civil Appeals to support the verdict is a question of law, upon which the court will revise the judgment of that court. * * * The Court of Civil Appeals erred in not reversing the judgment of the District Court, for the reason that there was no evidence that the plaintiff in error acted without probable cause, and because the advice of the county attorney, if given upon a fair statement, is a defense against the action for damages." The judgments of the District Court and of the Court of Civil Appeals were reversed, and the cause remanded for another trial.
If the question there was one of law, so is the question here. There the judgments of both the trial and appellate courts were reversed; the first, because a motion for new trial, affirming that there was no evidence to establish a material fact, was overruled; and the second, because an assignment to the same point was not sustained. Here the *Page 331 point made by the losing party in the trial court was the same made in the appellate court, namely, that the verdict was unsupported by the evidence, and against its manifest weight. The contention was overruled by the trial court, but sustained by the Court of Civil Appeals. That court considered the "sufficiency of facts * * * to support the verdict;" and in finding them insufficient and contrary to the evidence, decided a question and announced a conclusion of law.
I am not unmindful that in the case cited the reversal followed the ascertainment by this court that the Court of Civil Appeals had erroneously adjudged that there was no evidence to a material fact; but a finding that a verdict is unsupported by or against the evidence, is not less a conclusion of law than is a finding that there is no evidence to a material fact.
Texas Pacific Railway Company v. Raney, 86 Tex. 363, was a suit for damages for personal injuries inflicted on the plaintiff through the defendant's negligence. The plaintiff recovered judgment, which, on the defendant's appeal, was affirmed by the Court of Civil Appeals. Obtaining writ of error from this court, the defendant relied here on this assignment: "The court erred in not granting defendant a new trial, because there is no evidence to support the verdict, and it could not have been rendered by an impartial jury, which is one of the grounds for a new trial in defendant's motion therefor." The defendant in error insisted, that this assignment did not authorize a review of the evidence to determine its sufficiency to support the verdict. Affirming the judgments of the District and Court of Civil Appeals, the court said: "The last assignment, which asserts that there was no evidence before the jury upon which the verdict could be based, does not call upon us to decide whether or not the evidence is sufficient to sustain the verdict of the jury; but this court is confined to the question, was there any evidence from which the verdict might have been arrived at? We can not say that there was no evidence sufficient to submit to the jury the question of negligence on the part of the defendant. If there is error in this particular, it is not of a character that this court can revise. We feel constrained to say, however, that we could not have reached the same conclusion arrived at by the jury, based upon the improbable story of the plaintiff as to the manner in which the injury occurred."
To authorize a judgment for the plaintiff in the case cited, a verdict for him was necessary on an issue of fact — that is, the alleged negligence of the defendant. Such verdict was found, and by affirming the judgment rendered thereon, the Court of Civil Appeals affirmed that finding. This court, unable to say that there was no evidence sufficient for submission to the jury on the issue made, affirmed the judgment of the District Court and the Court of Civil Appeals, although conceding that it could not have reached the jury's conclusion. The declaration, that "if there is error in this particular, it is not of a character that this court can revise," must mean either *Page 332 that the evidence was considered by the court as sufficient to warrant the verdict as a tenable, though to the court not satisfactory, deduction from it, and that therefore there was no power in the court to revise it, it being a finding of fact not unsupported by the evidence, or that, independently of the character of the evidence, the court could not enter into the question of its sufficiency, because not invited by the assignment to do so. If the court thought the evidence insufficient, or deficient in the sense of wanting the probative force necessary to support the verdict, and if it was not precluded by the restrictive form of the assignment from giving voice and effect to its opinion, it could have revised the error involved in the verdict, and perpetuated in the judgments. The question presented to it by the assignment was one of law, namely, whether the verdict and judgment following it were infected by an error of law, in that the verdict was without evidence to support it. Had the court been informed by the record that there was no evidence to support the verdict, the nature of the question before it would have been the same, and there would have been a reversal, because of the error of law in finding the fact of negligence without evidence. Likewise, had the assignment affirmed the insufficiency instead of the nonexistence of evidence to support the verdict, the question for the court would have been still one of law.
It is scarcely needed to add, that the decision or judgment of the Court of Civil Appeals, affirming the judgment of the District Court overruling the motion for new trial, was a question of law, namely, whether the District Court erred in refusing a new trial in response to the defendant's claim that there was no evidence to support the verdict. It was accepted and disposed of here as such a question; for otherwise this court would have been without jurisdiction — if it be true, that it is in all cases concluded by a finding of fact by the Court of Civil Appeals.
Muhle v. Railway, 86 Tex. 459, was a suit to recover two lots, to condemn which for the defendant's use it appeared that proceedings had been had; but it was claimed by the plaintiff, that the defendant had abandoned the use of the lots, and all intention of using them, for the purpose for which they had been condemned. The District Court, on the issue of abandonment, directed a verdict for the defendant, and there was judgment accordingly, which the Court of Civil Appeals affirmed. Because of that direction, the judgments of the District Court and the Court of Civil Appeals were reversed and the case remanded. The court said: "It is not our province to weigh the evidence or to determine what conclusions the jury should draw from it. But whether or not there was evidence from which the jury might have deduced the conclusion that the company had abandoned any intention ever to use the lots for the purposes of a depot, is a question of law, which we are called upon to determine. A careful examination *Page 333 of the evidence constrains us to hold, that the question should be decided in the affirmative."
So here, though yet more strongly. The decision is, in effect, that the evidence is deficient in probative force to support the verdict. It is not less a conclusion of law than would be the judgment of a court sustaining a demurrer to evidence, and the issue presented to this court by the impeachment of the decision is one of law.
One essential difference between the majority of the court and myself is this: They understand the question to be, whether there is evidence to sustain the finding of the Court of Civil Appeals, as a fact, that the assured committed suicide as charged; whereas, the question is, as it seems to me, whether the verdict of the jury negativing such suicide is unsupported by the evidence.
I am of opinion that the verdict is neither unsupported by nor contrary to the evidence, and that the error of the Court of Civil Appeals should be corrected here. I can not agree that a litigant can be deprived of his constitutional right of trial by jury by a judgment of that court, sustaining an assignment that the verdict in his favor is unsupported by the evidence, when it seems clear to me that that judgment is an erroneons decision of a question of law. If I am to accept the conclusion of my brethren, it must be upon compulsion of logic that takes no denial.
In view of the direction given the case by the court, it would serve no useful purpose to detail further the reasons for my dissent from its opinion and judgment.
Delivered June 14, 1895.