1 Iowa 135 | Iowa | 1855
Tbe only question presented for our determination, is, did tbe court err in refusing to grant a new trial. The plaintiff insists, that this case should not be reversed for a number of causes, that have no reference , to tbe correctness or incorrectness of tbe ruling of tbe court, or tbe motion for a new trial; and it is proper that we first dispose of them. It is first objected, that tbe motion for a new trial was not made until some eight days after tbe rendition of tbe verdict. As disclosed by tbe record, however, tbe motion was made on the same day tbe verdict was rendered, though not finally disposed of until some eight days after tbe filing. So that this objection would appear to have been founded on a mistake in fact, and it is unnecessary to further speak of it. It is also claimed, that no exceptions were taken to the instructions of the court 'at tbe time, and not until after verdict. As we do- not understand that defendant objects to, or assigns errors on the instructions, it is entirely immaterial whether be did, or did not, except: Plaintiff’s counsel also claims, that all the testimony is not contained in tbe deposition of Charles H. Jourdan, but that much other testimony was given as to tbe terms upon which defendant undertook to deliver this gold dust to plaintiff’s wife. If this appeared, or it did not appear, that this deposition was all the testimony on this subject, we should not hesitate to affirm tbe judgment. The bill of exceptions signed by the judge, however, states that tbe only evidence with regard to the terms on which the bailment by defendant was undertaken, was that contained in the said deposi
This objection to granting a new trial, it is clear, applies more strongly where there have been two concurring verdicts. In such cases, a new trial should rarely be granted, •unless some plain rule of evidence, or principle of law, be violated. But where the jury have disregarded the law, or have rendered two concurring verdicts that show no fair and proper exercise of judgment on the testimony submitted, but have clearly found against the evidence, a third trial should be granted. See Frost v. Brown, 2 Bay, 133; Keble v. Arthurs, 3 Binney, 26; Commissioners of Berks v. Ross, 3 Ib. 520; Wilkie v. Roosevelt, 3 Johns. Cas. 206; Trott v. West, 10 Yerger, 500; Wilson v. Greene, 7 Humph. 513.
The only question in this case, then, is, was this second verdict so far in violation of the evidence, as that we can say, that the jury clearly and unquestionably disregarded the same, and did not exercise a fair and proper judgment therein? "We have examined the testimony in all its weight, as favoring and sustaining this verdict, and are entirely unable to see how, in any fair and reasonable way, the jury could have found as they did. The court instructed the jury, in substance, that plaintiff must prove the contract of bailment as he had in his petition alleged, otherwise he could not recover. That contract, as there alleged, was, beyond all question, a bailment for hire, in which defendant undertook to carry and deliver the proceeds of the gold dust, for a certain reasonable reward to him to be paid. The evidence shows, quite as clearly as language can make it, that there was no such contract, but that defendant expressly refused to accept compensation, and undertook to take this money, not for hire, but as a gratuity, for the plaintiff. The different degrees required in these undertakings, and what negligence will render a party liable in one case, and not in the other, are well understood and clearly recognized by all
If we could see in this evidence anything that could, by any fair construction, sustain this verdict, we should not disturb the judgment. Believing that .such verdict was entirely unwarranted by the testimony, however, the judgment must be reversed.
Judgment reversed.