The opinion
LUCAS, PRESIDENT :
I concur in the conclusion reached in this case, and unite in the syllabus. I think, however, that the first point of the syllabus will be better understood when accompanied with comment.
The decision of the Circuit Court in granting or refusing a new trial is always entitled to peculiar respect; but I do not concur in the modern view that it is entitled to more respect when the new trial is granted than when it is refused. Notwithstanding the dicta upon this subject by our own Court and the courts of several other states, I can not but believe that the verdict of the jury upon questions of fact, confirmed by the decision of the trial court in its favor thus evincing the concurring minds of thirteen persons present at the trial, with full opportunity to note the character and observe the demeanor of the witnesses, is entitled to peculiar respect, and, where the question is one of fact only, is entitled to as much or even greater weight than where twelve men have found the facts one way, and the thirteenth man, who presided at the trial, has dissented. '
When it is,said, therefore, that this Court ought not to interfere and reverse an order granting a new trial, unless *57 it is plainly wrong, it is, in my opinion, only meant by the proposition to re-affirm the old aiid established doctrine of the common-law, so long and universally concurred in by the court of appeals of Virginia and of this state, viz., that no judge ought to interfere with the verdict or set it aside, unless the evidence tending to support it is so insufficient as to shock the common judgment of mankind, and to indicate that the jury has been influenced by prejudice, partiality, or plain and palpable mistake. This has been the doctrine for centuries, and I do not conceive that the recent legislation upon this subject (see Act of 1891, and section 9 of chapter 131 of the Code) was intended or could be properly construed to be an attempt to break in upon, or destroy, or in any degree impair, the long established canons of practice and judicial decision.
I have thought this precautionary note should accompany the opinion and syllabus in this case, in order that the views of the Court might not be misinterpreted or misunderstood.
The practice in most of our sister states has long been to send up the evidence, instead of the facts proved. This practice I have always thought preferable to our own, but its prevalance has not in any of our sister states, so far as I know, been supposed to abolish the common-law rule, now hoary with the frost of centuries, that it is the peculiar province of the jury to pass upon the facts, and that their verdict ought not to be disturbed except where evidence of partiality, prejudice, or mistake is apparent.
If or his dictum in Miller v. Insurance Co., 12 W. Va. 128 , Judge IIaymond cites no authorities; and those cited by counsel are only persuasive, and at variance with the spirit of our older Virginia decisions; and the reason assigned for paying greater respect to the action of the Circuit Court in setting aside a verdict than in refusing to interfere with it is very unsatisfactory, and is therefore entitled to no weight. That reason is that the defendant, when the verdict is set aside, thereby obtains, another chance to adduce his evidence, or, if he thinks proper, to produce further evidence at the new trial. This reason is totally unsatisfactory. The plaintiff having obtained a verdict at the hands of the pro- *58 per and legitimate tribunal for the decision of questions of fact is entitled to its award, and ought not to be put to the disadvantage of renewed litigation, except in accordance with and obedience to the principles of the common-law, as before announced.
The general principle upon this subject is thus laid clown by Mr. Iiillarcl:
“A new trial may be granted on this ground (that the verdict is against evidence) though a particular fact is left to the jury, which they find. But no ground of new trial is more carefully scrutinized or more rigidly limited. It is regarded as inconsistent with the established maxim of law', ‘ad questionem leyis, judiccs, ad questionem faeti, juratores, respondent.’ It is said : ‘Courts should rarely take it upon themselves to decide on the effect- of evidence. Were they so to act they might, with truth, he charged with usurping theju’ivileges of the jury. If it is clearly wrong, it must do so. If we only doubt its correctness, we must let it alone. We are not satisfied that the verdict of the jury was right. But this is not enough. A mere difference of opinion between the court and jury docs not warrant the former in settiug aside the finding of the latter. That would be, in effect, to abolish the institution of juries, and substitute the court to try all questions of. fact.’ And the distinction is made that it is the duty of the court to determine upon the competence of evidence, and not upon its sufficiency; and a verdict ought not to be set aside although it should be the opinion of the court that the evidence was not sufficient to justify it; that a jury might find a fact from slight evidence, if it is competent; and that the evidence most be clearly insufficient to warrant the verdict to. authorize the granting of a new trial, especially by an appellate court.” * * * “Hence it is the prevailing rule that a verdict will not be set aside unless clearly, palpably, decidedly, and strongly against the evidence, or so much against the weight of evidence as on the first blush of it to shock the sense of justice, or unless there lias been a flagrant abuse of discretion; that courts will uever, in the absence of the most satisfactory evidence that the verdict is erroneous, substitute their impressions for the opinion *59 of the jury.” Ilill New .Trials, p. 448 et seq., c. 14, §§ 8-12.
I believe the above quotation from Mr. Hilliard properly defines the law of new trials in this State, and whenever the principles therein announced have been violated by the Circuit Court, -whether in granting or refusing a new trial, its action is “clearly wrong,” and when brought to the attention of this Court for. review should be reversed with absolute indifference and impartiality as to the question, whether the lower court set aside the verdict or confirmed it. Brugh v. Shanks, 5 Leigh 598 ; Mays v. Callison, 6 Leigh 230 ; Patterson v. Ford, 2 Gratt. 19 ; Hill v. Com., Id. 595; Grayson v. Com., 7 Gratt. 613 ; Campbell v. Lynn, 7 W. Va. 665 ; Miller v. Insurance Co., 12 W. Va. 116 ; Newlin v. Beard, 6 W. Va. 110 ; Sheff v. Huntington, 16 W. Va. 308 (syllabus p’ts 12, 13, 14;) Reynolds v. Tompkins, 23 W. Va. 229 ; Probst v. Braeunlic, 24 W. Va. 357 .
Judge Holt concurs with me in the views expressed in this note.
REMANDED.