24 Iowa 505 | Iowa | 1868
Appellant complains of the action of the court below in overruling his motion for a new trial. This was based upon three grounds: First, that the verdict was against law and evidence; second, that the jury misunderstood the instructions; third, that the evidence did not support the allegations of the petition.
2. slander: after suit°keu commenced. II. None of the instructions are before us. As to these, then, we do not understand there was any complaint on the trial below. For the purpose of proving malice, a witness was introduced wj10 testified, that defendant spoke to him the same words after the institution of this suit. Two of the jurors made oath, that they considered this evidence in connection with that offered of the original speaking, and that if there had been no evidence of the second speaking, they would not have agreed to the verdict.
We see nothing in this to show that the jury misunderstood the instructions. That it was their duty to consider the evidence of the second speaking is not denied. We,- of course, presume that the instructions properly explained to them the effect of such testimony, and that they must find that the words were actually spoken as charged, before the action was commenced.- This, indeed,is conceded in argument. If so, then why not consider the evidence just as these jurors say they did? And why, if they had failed to do so, would they not have been guilty of neglect of duty ? Not only so, but in view
Now, conceding that the old rule was as defendant claims, we think under our practice and the circumstances of this case, that this point cannot be sustained. Nothing is clearer than that, under our system of pleading and practice, a case should be so tried as to prevent surprise, and that objections should be made at such times as that the corrective may be .applied. This is the undoubted teaching of case after case in this court.
Equally true is the proposition that an objection should be plainly made and not stated generally. Now, if in this case, the testimony had been objected to, plaintiffs could have amended their petition, and thus obviated the difficulty. So, if the variance had been called to the attention of the court in the instructions, plaintiffs might have deemed it necessary to take such a course as to obviate the objection. Made, however, so far as we know specifically for the first time, in this court, we are not disposed, upon this ground, to interfere with the verdict and judgment. ... .....Affirmed..