Hunt v. Van
202 P. 573
Mont.
1921
Check Treatment
MR. COMMISSIONER SPENCER

prepared the opinion for the .court.

Plaintiff below brought action against the defendant, alleging that on or about June 1, 1917, the defendant did “wrongfully, violently, and mаliciously” commit an assault and battery upon her, to her damage in the sum of $5,000: Answer was a general denial. Verdict and judgment were in favor of plaintiff for $3,000. Defendant’s motion for a new trial was denied, and the cause is hеre by appeal from both the judgment and the order denying the motion.

Appellant’s specifications 1 аnd 2 assign as error the order [1, 2] of the court refusing to grant his motion for a con*399tinnance. The ruling upon such motion must be guided by the discretion of the court, and its action in that regard is not subject ‍​‌​‌‌​​‌‌​‌‌​‌​​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌‌​‌‌​​​​‌‍to review, in the absence of an affirmative showing of prejudice by the unsuccessful party (sec. 6729, Rev. Codes; Downs v. Cassidy, 47 Mont. 471-475, Ann. Cas. 1915B, 1155, and cases cited, 133 Pac. 106); nor is that diligence disclosed in the affidavits for continuance which is indispensаble, in that it does not appear when the subpoena was issued for the absent witness, why the subpoena wаs sent to the sheriff of Custer, instead of Dawson county, why it was not served or returned when later sent to the deputy sheriff of Dawson county, nor was it claimed there was either possibility or probability that the personal attеndance of the witness or his deposition could be procured at any later date. There was no еrror in the ruling. (Meredith, v. Roman, 49 Mont. 204, 215, 141 Pac. 643.)

Over appellant’s objection, the court instructed .the jury [3] that: “You are instructed that every person has, subject' to the qualifications and restrictions provided by law, the right of protection from bodily harm or from personal insult.” The giving of abstract rules of law, such as this, hаs been condemned by this court, but, though erroneous, is not cause for reversal, provided sufficient qualification and explanation thereof is found in other instructions, so that when read together and as a whole it appears the issues were fully and fairly submitted to the jury. We think this requirement was met in other instructions. (Surman v. Cruse, 57 Mont. 253, 187 Pac. 890.)

Specifications 4 and 5 assigning error in refusal of the court to give certain instructions offered by defendant ‍​‌​‌‌​​‌‌​‌‌​‌​​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌‌​‌‌​​​​‌‍are without merit, since it appears their substance was amply covered in other instructions. (Surman v. Cruse, supra.)

Error is predicated upon the conduct of the plaintiff in [4] open court, it being claimеd that her display of nervousness and “collapse” in the presence of the jury prevented defendant from having a fair trial. We know of no power or *400rule of law by which the court is enabled to control the emotions of parties to a trial in court, and in the absence of some affirmative disclosure that the “сollapse” was prearranged and intended 'as a fictitious appeal to- the jury, and to securе an unfair advantage, this court must presume that the verdict was found in accordance with the evidence and law given by the court and uninfluenced by any extraneous matter.

The last contention of 'appellаnt ‍​‌​‌‌​​‌‌​‌‌​‌​​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌‌​‌‌​​​​‌‍is that the court erred in [5] its refusal to grant a new trial because of the excessiveness of the verdict. Within thе limits fixed in the pleadings it is the province of the jury to name the amount. There must, of course, in all cases, bе substantial evidence to support the award of the jury. In actions founded upon a contractual rеlation, where the actual damages can be arrived at by computation, a verdict exceеding the amount disclosed by the evidence to be recoverable will be set aside and- a new trial ordеred, unless remission of the excess is made by the prevailing party. And likewise in tort, where the sum fixed by the jury is unconscionable, or it is evident from the proof of the injury sustained that the jury must have been influenced by passion and prеjudice, a new trial may be granted, unless the successful party remit a portion of the recovery fixed by the verdict. This court said, in Jones v. Shannon: “There is no standard of measurement by which to determine the amount of damages to bе awarded, other than the intelligence of the jury, made up of impartial men governed by a sense of justiсe. To the jury, therefore, is committed the exclusive task of examining the facts and circumstances of each case and valuing the injury and awarding compensation in the shape of damages. ‘The law that сonfers on them this power, and exacts of them the performance of the solemn trust, favors the prеsumption that they are actuated by pure motives. It therefore makes every allowance for diffеrent dispositions, capacities, views, and even frailties in the examination of heterogeneous mаtters of fact, where no criterion can be ap*401plied; and it is not until the result of the deliberations of the jury appears in a form calculated to shock the understanding, and ‍​‌​‌‌​​‌‌​‌‌​‌​​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌‌​‌‌​​​​‌‍impress no dubious conviction of thеir prejudice and passion, that courts have found themselves compelled to interpose.’ (1 Grahаm & Waterman on New Trials, p. 451).” (Jones v. Shannon, 55 Mont. 225, 237, 175 Pac. 882, 886.)

It is not contended by appellant that the evidence does not support a finding for damages in some amount, but it is strenuously urged that the sum fixed is so far in excess of fair compensation for the injury sustained as to be unconscionable and to establish passion and prejudice of the jury in arriving at the amount. With this we cannot agree. We think the evidence of the plaintiff justified a finding for substantial damages, that the sum found is not unconscionable, and therefore we are without authority to order a reduction in the amount.

We find no error in the reсord to warrant a reversal, and therefore recommend that the judgment and order appealed from be affirmed.

Per Curiam : For the reasons given in the foregoing opinion, ‍​‌​‌‌​​‌‌​‌‌​‌​​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌‌​‌‌​​​​‌‍the judgment and order appealed from are affirmed.

Affirmed.