— -An automobile, driven by one Thomason but owned by the defendant, was carelessly driven into a machine driven and owned by plaintiff. Plaintiff brought this action to recover for personal injuries suffered, for damagе to the machine, and for some special damages. A verdiсt was returned in favor of the plaintiff for $585, and defendant has apрealed.
The principal error assigned is that the verdict is contrary to the law and the evidence, and that a motion for an instruсted verdict should have been sustained. The defense was that the machine was operated by Thomason upon an independеnt percentage basis; that he was a principal and not the agent of the defendant. The evidence offered by defendant might have sustained a verdict in his favor, but under repeated decisiоns of this court the jury was not bound to believe such testimony, the ownership of the automobile being admitted to be in the defendant.
“In cases of this kind, where it is shown that the wagon ■and team doing damages belongеd to the defendants at the time of the injury, that fact establishes prima facie that the wagon and team were in possession of the owner, and that whoever was driving it was doing so for the owner.” Knust v. Bullock,
See, also, Kneff v. Sanford,
One of the items of damage claimed is the loss of a certain surgical operation. Respondent is a physician and surgeon, and conducts a hospital near the town of Sultan. This is objected to as an improper element of damage, and in support of his motion for a new trial appellant has submitted the affidavit of the prospective patient or subject showing that it is extremely improbable that resрondent suffered any loss on this account. The operation wаs prospective, and its performance, under respondent’s own testimony, would be so speculative and uncertain as to аfford no proper foundation for an assessment of damages.
Respondent does not seriously contend that this item can be lаwfully recovered, but meets the argument of appellant with an affidavit signed by one of the jurors in which it is said that the loss of the surgical operation was not considered by the jury, and that it was not included in the vеrdict. Respondent then insists that, inasmuch as he claimed a greater sum than was allowed by the jury, the error, if any, was harmless.
The law will presumе in aid of a verdict that all matters testified to and submitted by the court tо the jury were considered, and this presumption cannot be ovеrcome by the affidavit of a juror. The issue inheres in, and becomеs a part of the verdict. To put verdicts upon issues propеrly submitted at the mercy of a juror, or to make them subject to exрlanation, would make trials by jury useless, for if jurors can disobey the instructiоns of the court and then be heard to affirm such disobedience in аid of a verdict that might have been rendered for the amount returnеd, they could also be heard to impeach the verdict as between the parties.
No authority is cited, nor do we find any, that will sustain thе supporting affidavit of the juror. The amount claimed on account of the lost surgical operation is $60.
The case will be remanded with directions to the lower
Mount, Parker, and Gose, JJ., concur.