Benjamin v. Stewart
Before: McKinstry
Synopsis
New Trial—Verdict—Mistrial.—No verdict was rendered by the jury for or against one of the defendants:
Held: It may be that there was a mistrial, or no trial, as to such defendant, and that the Court below may hereafter proceed to try the case as to him; but there was no cause for a motion for a new trial, or for an application to vacate the former verdict.
Id.—Irregularity in Proceedings of Jury—Misconduct of Jury—Affidavits.—When the motion for new trial is made on the grounds of irregularity in the proceedings of the jury, and misconduct of the jury, it must be made upon affidavits.
Id.—Damages—Passion or Prejudice.—There is no provision of the statute which authorizes the setting aside of a finding because of the “passion or prejudice ” of a jury exhibited by the rendition of a verdict for insvfficient damages; and as the whole matter is statutory, such assignment is not proper as an independent ground for setting aside a verdict.
Id.—Id.—Insufficiency of the Evidence.—It may be that under the fifth statutory ground for a new trial—■ ‘ ‘ insufficiency of the evidence to j ustify the verdict ”—a party might urge that the jury found against the evidence, in finding a less sum than the evidence established as the amount of damages sustained. But in such case the statement must specify the particulars of insufficiency; otherwise, it must be disregarded.
Id.—Id.—Verdict against Law—Instructions—Assault and Battery— Exemplary or Vindictive Damages.—Where, in an action for damages from an assault and battery, the court, in its charge, enumerated certain things as constituting elements of damage, as to which there was no evidence of the money value; and further charged the jury that plaintiff was entitled to recover “ for bodily pain and mental anguish,” etc.; and further, if the assault was “ wanton or reckless,” etc., exemplary or vindictive damages.
Held, For the things enumerated, the jury could assume only that nominal damages had been suffered; the jury may have considered the bodily pain and mental anguish as unimportant factors in the assessment; therefore, though this Court may believe that the jury should have found a larger verdict, it can not say the jury disregarded the instructions of the Court (even assuming thejhcts to show express malice), since, for aught that appears, they did find something by way of exemplary or vindictive damages.
McKinstry, J. : The appeal is from an order, granting a new trial, by defendants J. D. R. Stewart and James Morgan.
No verdict was rendered by the jury for or against the defendant Morgan. “A new trial is a re-examination of an issue of fact in the same Court after a trial and decision by [608]a jury, or Court, or by referees.” (C. C. P., § 656.) It may be that there was a mistrial, or no trial, as to defendant Morgan, and that the Court below may hereafter proceed to try the case as to him; but there was no cause for a motion for a new trial, or for an application to vacate the former verdict. (C. C. P„ § 657.)
The notice of motion for new trial is not set forth in the transcript. At the end of the statement on motion for new trial is what purports to be an “Assignment of Errors.” The first assignment has no relation to the case of either of the appellants. The second is, “ Irregularity in the proceedings of the jury, and misconduct of the jury,” etc. When the motion for new trial is made on these grounds, it must be made upon “ affidavits.” (C. C. P., § 648.) In the present case the motion is not supported by any affidavit purporting to set forth facts constituting irregularity or misconduct, within the meaning of these words as used in subdivisions one and two of Section 657.
The third assignment of plaintiff is. “ Nominal and insufficient damages, appearing to have been given by the jury under the influence of passion and prejudice.” Section 657 provides that a new trial may be granted for the cause of “ excessive damages, appearing to have been given under the influence of passion or prejudice.” But there is no provision which authorizes the setting aside of a finding because of the “ passion or prejudice” of a jury, exhibited by the rendition of a verdict for insufficient damages; and as the whole matter is statutory, the last is not proper as an independent ground for setting aside a verdict.
It may be, that, under the fifth statutory ground for a new trial—“ insufficiency of the evidence to justify the verdict”— a party might urge that a jury found against the evidence in finding a less sum than the evidence established as the amount of damages sustained. But in such case the “ statement must specify the particulars in which the evidence is alleged to be insufficient,” and where (as is the case before us) no such specifications are made, the statement “ must be disregarded.” (C. C. P., § 659.)
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