Gammons v. Gulbranson

BUCK, J.

(dissenting).

I dissent. There is nothing in this case to show that the jury were in any manner swayed or influenced, in rendering their verdict, by prejudice, passion, or any improper motive. A fair trial was had. The jury found a verdict in favor of plaintiff, and the trial judge refused to grant a new trial, thus adding his own judgment to the verdict of the jury that the weight of evidence was on the side of the plaintiff, Gammons. The latter testified that he had nothing to do with the champertous contract involved in the action, and no impeaching testimony was introduced as to his reputation for truth and veracity. At most, the evidence was conflicting, but the majority opinion utterly ignores the familiar rule that in.such case great weight should be given the opinion of the trial court in weigh*26ing the evidence and passing upon the weight of evidence. I think that the decision of the majority practically results in a trial of the facts by this court instead of the jury. But this appellate court has no sueh right, and should not weigh the evidence where there is a substantial conflict, and especially it should not disturb the order of the lower court in refusing a new trial in this case. The functions of the two courts in this respect are well understood. The trial court may weigh the conflicting evidence; the appellate court may not do so, in the ordinary meaning of that word. It is only when the evidence is so conclusively or manifestly and palpably one way or the other that the appellate tribunal is justified in interfering'.' In my opinion, this is not such a case, and I think the verdict of the jury should stand.

Champerty and barratry are serious charges to make against an attorney of this court; and where he positively denies such charges, and in that denial is sustained by a jury of his country and the opinion of the trial court, after a full and fair trial, I am not willing, upon such evidence as appears in this case, to yield my assent to the conclusion arrived at in the majority opinion. Highly as I. disapprove of acts of champerty and barratry, I feel that an attorney ought not to suffer from the injustice implied in the reversal of this verdict upon the grounds stated, hence I think that the order of the trial court should be affirmed. See Foot v. Mississippi & R. R. Boom Co., 70 Minn. 57, 72 N. W. 732, in which it was held that, where some evidence supports a finding- it will not be disturbed, though the evidence as a whole preponderates against it. And in Moran v. Small, 68 Minn. 101, 70 N. W. 850, it was held that findings of fact not against the overwhelming weight of evidence will not be disturbed.