Barney v. Schmeider
Barney v. Schmeider, 9 Wall. 248, 76 U.S. 248 (1869) was an action in assumpsit, in which the defendant pleaded the general issue.
The trial in the Circuit Court was before a jury, and the evidence consisted of the testimony taken a few days before on another trial. This testimony was voluminous and was put in with the consent of the parties and the approbation of the court. But it was not read to the jury, because the court regarded it as necessarily requiring a verdict for the plaintiff.
In a charge briefly referring to it and explaining why it was not read, the court instructed the jury that their verdict should be for the plaintiff, and the defendant excepted. Such a verdict was returned and judgment was given on it.
The Court reversed the judgment, and Mr. Justice Miller, delivering the opinion, referred to the constitutional right to a trial by jury and said, inter alia (pp. 251, 252):
"As the defendant in this case did not waive his right to have the facts tried by a jury, it was the duty of the court to submit such facts to the jury that was sworn to try them. It is needless to say that this was not done. The statement is clear that the case was decided upon the testimony taken on a former trial, and not read before this jury, because the court had heard it in the first case, and did not deem it necessary to be heard by the jury in this case.
"It is possible to have a jury trial in which the plaintiff, having failed to offer any evidence at all, or any competent evidence, the jury finds for the defendant for that very reason. And in such case it is strictly correct, if the plaintiff does not take a non-suit, for the court to instruct the jury to find for the defendant.
"But we have never before heard of a case in which the jury were permitted, much less instructed, to find a verdict for the plaintiff on evidence of which they knew nothing except what is detailed to them in the charge of the court. It is obvious that if such a verdict can be supported here, when the very act of the court in doing this is excepted to and relied on as error, the trial by jury may be preserved in name, but will be destroyed in its essential value, and become nothing but the machinery through which the court exercises the functions of a jury without its responsibility.
"It is insisted with much ingenuity that in this case there was no disputed fact for the jury to pass upon, and that the only issue in the case being one of law, it was proper for the court to dispose of it. If this were so, the instruction of the court might be sustained, provided the undisputed facts necessary to sustain the verdict had been submitted to the jury."
In Barney v. Schmeider, 9 Wall. 248, the court received the testimony taken on a former trial, but did not have it read to the jury.
The court informed the jury of its purport and directed them to find a verdict in favor of the plaintiff. In other words, the court followed the practice of directing a verdict by a jury without the evidence upon which it should rest being properly presented to the jury.
The court overruled the contention that there was not a disputed question of fact, saying, after reviewing the case, "Where there is any discrepancy, however slight, the court must submit the matter to which it relates to the jury, because it is their province to weigh and balance the testimony and not the court's. The proposition is not, therefore, sustained, that nothing but a question of law was to be decided." (Id., p. 253.)