INTER-STATE FIDELITY BUILDING AND LOAN ASSOCIATION, a Corporation, Appellant,
JEFF DAVIS HOLLIS and GEORGE L. HOLLIS, Her Husband, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment set aside and case remanded for retrial.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellant.
Messrs. Cox, Moore & Janson, for Appellees.
[41 Ariz. 296] LOCKWOOD, J.
Inter- State Fidelity Building & Loan Association, a corporation, hereinafter called plaintiff, brought suit against Jeff Davis Hollis and George L. Hollis, her husband, hereinafter called defendants, seeking to foreclose a real estate mortgage given by the latter to secure the payment of a certain installment note. The complaint contains the usual averments in an action of that nature. The defense was that, when the note which the mortgage secured was signed and delivered by defendants, it was not complete, there being in it three blank spaces which plaintiff was authorized to fill in a certain way, and that the latter filled them in a manner contrary to the authorization given it by defendants. The case was tried before a jury which, in answer to interrogatories, found the defense above described to be true, and the court, adopting such answers, rendered judgment in favor of defendants. From said judgment this appeal has been taken.
There are some twenty-eight formal assignments of error, but, as stated by plaintiff in its brief, the sole [41 Ariz. 297] question for us to determine is whether or not the jury and trial court were justified in finding that the rate of interest appearing on the face of the note
which was offered in evidence and admitted by defendants to have been signed and delivered by them, was inserted after its delivery. Defendants testified positively and unequivocally that when they signed the note there was no rate of interest specified therein, but that there was a blank space provided in the proper place so that the rate of interest could be inserted, and that plaintiff's agent had agreed with them that the rate of six per cent. would be placed therein. Plaintiff relies on the physical condition of the note as it appears in the record.
It is the rule in this as in most appellate courts, and one from which we have never departed, that where there is a conflict in the evidence so that a reasonable man considering the evidence could take either view of a controverted issue of fact, we will not disturb the findings of the trial court and the jury. Blackford v. Neaves, 23 Ariz. 501, 205 P. 587; Durazo v. Ayers, 21 Ariz. 373, 188 P. 868; Pacific Gas & Electric Co. v. Almanzo, 22 Ariz. 431, 198 P. 457; Cunningham v. Costello, 19 Ariz. 512, 172 P. 664.
It is also the rule that the credibility of witnesses is a question for the jury and not for an appellate court. Lummer v. Unruh, 25 Cal.App. 97, 142 P. 914; Potter v. Aetna Life Ins. Co., 71 Wash. 374, 128 P. 647; 4 C.J. 848.
But these rules have always had the qualification, sometimes expressed but oftener implied, that the conclusion arrived at by the jury must be such as could have been reached by a reasonable man upon the testimony appearing in the record, and that, where it appears clearly that the evidence on which alone the jury could have reached the conclusion that [41 Ariz. 298] it did was so incredible that no reasonable man could have believed it, we will set aside the verdict and judgment on the ground that the jury must have been actuated by passion and prejudice, and not a calm and judicial consideration of the evidence. Wright v. Young, 20 Ariz. 46, 176 P. 583; Otero v. Wheeler, 21 Ariz. 50, 185 P. 359; Butler v. Shumaker, 4 Ariz. 16, 32 P. 265.
This qualification, stated in the abstract, is not seriously disputed by defendants, but it is their contention that it is only when the evidence upon which the jury must have based its verdict is such as to be physically impossible that the court is justified in holding it insufficient to support the verdict.
It is the position of plaintiff, on the other hand, that even though it is not a physical impossibility that the testimony believed by the jury is true, yet if all the surrounding facts are such that it appears no reasonable man could have believed it, the case should be reversed, and that the appellate court may and should use its independent judgment as to whether, notwithstanding the evidence believed by the jury is physically possible, it is, according to the experience of human nature, incredible. The question is one which has never been specifically passed upon in this jurisdiction, and is of some importance. Most of the cases, it is true, in which appellate courts have set aside verdicts on the ground that the testimony on which the verdict must have been based could not have been believed by a reasonable and impartial jury, have been those in which such testimony was, as a matter of physical law, impossible. There are authorities, however, which do not go to this extent. Kurath v. Gove Automobile Co., 149 Wis. 390, 135 N.W. 752; Casey v. Northern Pac. Ry. Co., 60 Mont. 56, 198 P. 141; Vukmanovich v. State Assur. Co. of Liverpool, 82 Mont. 52, 264 P. 933. [41 Ariz. 299]
After careful consideration, we are of the opinion that a rule which confines the power of the appellate court to reverse for insufficiency of the evidence to those cases alone where the testimony which supports the verdict is concededly a physical impossibility, is too narrow, and that the better rule is that, if such testimony is so incredible as to be beyond the ordinary experience of mankind, and the surrounding facts and circumstances of the case tend to show a situation likely to cause bias and prejudice on the part of the jury, the appellate court should not hesitate to send the case back for a new trial. The principal reason for the ordinary rule that appellate courts will not pass upon a conflict in the evidence or the credibility of the witnesses is that such a court has not the chance of hearing and seeing the original evidence, but only a ...