Stuart v. Hoffman

Searls, C. — This is an action to recover damages for malicious prosecution. The complaint is in the usual form, and its material allegations are negatived by the answer.

[382]The cause was tried by a jury, and a verdict of $750 rendered in favor of plaintiff, upon which judgment was entered. Defendant applied for a new trial, which was denied, and from the judgment and order denying the motion for a new trial this appeal is prosecuted. Appellant contends the evidence is insufficient to sustain the verdict, because the arrest of plaintiff by the procurement of defendant was upon probable cause, and not malicious.

That the verdict will not be disturbed where there is a substantial conflict in the evidence is admitted; but the contention of appellant is, that, notwithstanding the rule, the present case, by reason of the great preponderance of the evidence in favor of defendant, stands as an exception.

The earnestness and apparent sincerity with which this plea is urged entitles the claim to careful consideration, and we have more than once perused the record, but always with the result of a settled conviction that the testimony involves a substantial conflict, and that in all human probability some portions of it are untrue.

It was the peculiar province of the jury to give credit where due, to reconcile discrepancies and decide upon the weight of evidence thus conflicting; and having done so, we are not at liberty to disturb the verdict upon the ground that it is contrary to the evidence.

2. The damages are not, all the circumstances considered, so excessive as to warrant the inference that they are the result of passion or prejudice, and are not so excessive as to warrant us in disturbing the verdict.

3. A number of exceptions were reserved at the trial to rulings of the court upon testimony offered. They are, for the most part, predicated upon unimportant matters, and we deem the rulings either correct or of no consequence in their effect upon the final result.

4. The court, upon his own motion so far as appears, gave to the jury thirty-three instructions, in which, as it. seems to us, he very clearly embodied the law applicable to the case.

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