| Haw. | May 3, 1859
delivered the decision of the Court as follows:
This is an action of assumpsit, in which the plaintiff claimed from the defendant the sum of §250 for labor and services done anS performed for tbe defendant, on bis farm at Kailua, on tbis island. Tbe jury rendered a verdict in favor of tbe plaintiff for $107 75.
Tbe defendant now moves tbe Court to grant a new trial, on the following grounds, viz :
1. That tbe verdict is contrary to tbe evidence and tbe law.
2. That tbe jury in rendering tbeir verdict were influenced by suppositions and inductions, not derivable from tbe evidence ■and contrary to fact; and,
3. That since tbe trial of tbe cause, defendant has discovered new and material evidence.
We will dispose of tbe second of these grounds before we consider tbe others. Tbe verdict in favor of tbe plaintiff was found by nine out of tbe twelve jurors, the other three dissenting ; and now tbe defendant presents, in support of tbe second ground on which bis motion is based, tbe affidavit of one of tbe dissenting jurors, to tbe effect that some of tbe jurors who agreed in finding tbe verdict, gave as a reason for so doing, that they believed tbe defendant bad been engaged in distilling spirits from tbe hi root, of wbicb there was no proof, and bad employed tbe plaintiff in working at that business, in addition to tbe other work expressly proven. In corroboration of tbis affidavit, tbe defendant’s counsel presents his own affidavit to tbe same effect, based upon tbe statements of some of tbe jurors made to him after tbe trial. We are of tbe opinion, as is contended on tbe part of tbe plaintiff, that these affidavits are inadmissible ; first, as being excluded by tbe general rule, wbicb forbids tbe reception of tbe affidavits or declarations of jurors, to show misconduct in making up tbeir verdict; and, secondly, because neither of these affidavits specifies tbe name of any particular'juror, as having declared that his mind was influenced by extraneous considerations. These objections are well taken. In the United States, and in England, ever since tbe case of Yaise vs. Delaval, (1 Durnford & East, p. 11,) in wbicb judgment was given by Lord Mansfield, tbe uniform ruling of tbe
In regard to another of the reasons urged for the granting of a new trial, namely, that the verdict is against the weight of evidence, we would remark that it has been repeatedly ruled in this Court, in conformity, we believe, with the vast preponderance of authority on the subject, that a new trial will not be granted on the ground here assigned, unless the verdict is so manifestly against evidence as to render it clear that a mistake has been committed, or that injustice has been done through an abuse of power on the part of the jury. In the present case, evidence proper to be weighed by the jury was adduced on both sides, and, even if the finding of the jury did seem to us against the preponderance of evidence, yet we would not feel justified in setting aside the verdict on that account. It is the province of the jury to respond to the facts, while the Court responds to the law; and while the Court, in the exercise of its supervisory control, will take care to prevent any party from suffering injustice through an abuse of power on the part of the jury, it will at the same time carefully abstain from anything like a usurpation to itself of the proper functions of the jury.
The last ground assigned in favor of the motion is, that since the trial of this cause the defendant has discovered new and important evidence. He states in his affidavit that, since the
It is objected to the granting of a new trial on this ground, that the defendant might, by the exercise of due diligence, have obtained the testimony of Crane before; and that the newly discovered evidence is merely cumulative. We see nothing in the circumstances of the case, which shows such a want of diligence on the part of the defendant, in not procuring this testimony before, as ought to lead us to refuse his motion for that cause. And, while we regard some portions of Crane’s proposed testimony as clearly cumulative, and therefore of no value in this proceeding, there are other parts of it to which we think that objection does not fairly apply.
There is an apparent want of uniformity among the authorities, in regard to the question of what evidence shall be considered cumulative, and what shall not. This arises, in a great, measure perhaps, from a want of precision in the use of language, and from the great diversity of facts presented by different cases. Eor instance, in one case it is said, “ Newly discovered evidence, to be a ground for a new trial, should respect a matter that has come to light since the trial, and on which the party has never been heard.” (U. S. Digest, vol. 5, p. 439, sec. 206.) In another case it is said, “ In Mississippi, a new trial will be awarded on the ground of newly discovered testimony; and it seems that, although the newly discovered evidence is intimately connected with some parts of the testimony at the trial, yet if it be specifically distinct, and bear upon the issue, a new trial will be granted.” (Ibid, p. 439, sec. 221.) And in another case it is said, “ Cumulative evidence is evidence which speaks to facts in relation to which there was evidence on the
It is, perhaps, less difficult to decide, in most cases, as to what evidence would clearly be considered cumulative, than it is to say what would not be so; and hence we have been led to examine this point with some care, with the view of arriving at a definition which may serve, in some measure, to guide us in future. Throughout the general current of the numerous cases which we have examined, the leading principle of decision seems to be almost the same in effect, although enunciated in
Testimony was given at the trial, tending to prove by the plaintiff’s own declarations, that in the month of May, 1858, after he had been living at the defendant’s place for seven months or more, the defendant owed him nothing ; but that he was at that time indebted to the defendant thirty or forty dollars. Plaintiff had ceased to live with the defendant by the end of August, 1858. Crane states in his affidavit, that in the conversation he had with the plaintiff, in January last, plaintiff told him that “he was still owing Mr. Jacobs,” and “that the defendant had done everything that was honorable to him, the plaintiff.” Proof of such declarations made by the plaintiff, after he had ceased to live with defendant, and within two months of the time this action was commenced, is proof of a new, distinct, and material fact, of which no evidence was given at the former trial; and we feel constrained to say, that, upon this showing, the defendant should have the opportunity of again submitting this case to a jury.
The motion for a new trial is granted, upon condition that the defendant pays one-half the costs accrued, the other half to abide the result of the new trial.