#### Matthews v. Gray.

(Decided May 25, 1911.)

Appeal from Grant Circuit Court.

1. Evidence — Finding of Jury — Where -one witness testifies one way, and another witness to .the contrary, it .can nbt he said that there is no evidence to sustain the verdict or that the finding of the jury is flagrantly against the evidence.

2. Instructions — Bill of Exceptions — The court can pot pass upon the sufficiency of instructions when they are not set out in the bill of exceptions but are referred to only by number, as it has no means of knowing what the instructions contain.

DICKERSON & HOGAN and M. D. GRAY for appellant.

B. F.. MENIFEE and CARNES & ERNST for appellee.

OPINION OF THE COURT BY'

WlLLIAM ROGERS CLAY, Commissioner

Affirming.

In this action the appellee, Mattie Gray, recovered damages in the sum of $300 against N. S. Matthews who prosecutes this appeal.

Appellee and her husband lived upon appellant’s farm. Appellee claims that, on February 4,1909, appellant came to the house which she occupied. There was no one there but her and her baby; her husband was out on the place at work. Appellant stopped at the fence and hallooed twice. Appellee stepped out of the house and appellant remarked that it was a nice day. Appellant then asked her where he could' find Bob, his brother. Appellee told him she supposed he was at work;' Appellant then told her to get the writing, as he wanted to make a few changes in it. She went and got the paper and started to give it to him, when she saw his face twitch and knew by his expression that her husband had not sent for the writing. She then said: “Doctor, I will *843not give you this paper,.for Embry did not sent for it.” Appellant said, “yes, he did,” and made a grab for it and got his hands on it. Appellant grabbed for the writing .a second time, and shoved appellee backward over a sled that was sitting near the fence; he also struck ap-pellee. Appellant did not get all of the paper, but only a part of it. . When he got the paper he started tearing it up; whereupon appellee protested, but appellant kept on tearing the paper. After the difficulty, appellee was sick and nervous, and was unable to get up for about ten days. It was five or six weeks before she was able to do her washing. She sent for a physician. Dr. Valland-ingham came about five or six o’clock and.prescribed for her. The third day after she was hurt, Dr. Marshall came.. After that he never returned, but sent her some medicine.

... -Dr. Vallandingham testified that, when he called to see appellee, he found her in a very nervous condition, and she complained of her right chest and shoulder giving her pain. Appellee was in bed when he first called there. Upon examining her,' he did not find any. marks or .scratches upon her body. Dr. Marshall testified that he called to see appellee, but made no physical examination... - He found .that she was nervous. She complained of suffering in her back and head. . ,,

Appellant testified that he went over to the place looking for his brother, Bob. When he reached the house where the Grays, lived, Mrs. Gray came out and asked him if he was looking for Bob.. He told her that he was, and inquired whether or not he was at home. She said she thought he was.’ While there he thought of a contract he had sent to Gray, which 'had not been signed, and asked her if she had it. She told him she had the contract in the house. He then asked her to get it for him. She did so, bringing it out to the fence and handing it to him. He then looked at it, and, seeing that it was not signed, tore it lengthwise. When he had. torn up the paper, appellee said: “Forty men in Crittenden have seen that paper and know that you are a rascal.’.’ He then walked off, tearing the paper, and went over to his brother’s house. Appellant also says that he did not snatch the paper out of appellee’s hand, nor did he take her by the arm, nor did he push her backward over a sled, nor did he strike her at any time; in fact, there was *844no sled where they were standing. He was on one side of the fence, while appellee was on the other. He further - testified that he had been suffering from heart trouble for some time and was not in a condition to stand any excitement.

. It is earnestly insisted that, because appellant is a reputable physician of high standing in the community, appellee’s story is unworthy of belief. The credibility of witnesses, however, is always for the jury. Where one witness testifies to one state of fact, and another witness directly to the contrary, it can not be- said that there is no testimony to sustain the verdict, or that the verdict is flagrantly against the evidence. These are the only two cases in which the courts have a right to interfere with the finding of a jury.

Nor can we say that the amount of the verdict is excessive. If appellee’s story be true, she was entitled, at least, to that amount.

Complaint is made' of the instructions, but, as they are not set out in the bill of exceptions, but are referred to only by number, we have no means of knowing what they' contain. That being true, we can not pass upon their, sufficiency.

' Finding ho error in the record prejudicial to the substantial rights of appellant, the judgment is affirmed.