Williams v. Townsend

15 Kan. 563 | Kan. | 1875

Lead Opinion

The opinion of the court was delivered by

Valentine, J.:

This was an action in the nature of an action of trespass, brought by Lawrence Townsend against Marion Spahr, S. J. Williams, and W. L. Parsons, for an alleged assault and battery. The petition alleged among other things, that “ the said defendants did unlawfully and with force assault the said plaintiff, and there shoot and wound with shot from and out of a shot-gun held in the hands of the said defendant Marion Spahr.” The answer was a general denial. Williams and Parsons had a separate trial, and on such trial the plaintiff introduced evidence, over the objections of the defendants, but with the permission of the court, to prove that Spahr, with the cooperation of Williams and Parsons, was illegally, and in violation of a certain statute, (Laws of 1872, page 339,) hunting on the inclosed lands of another, without the consent of the owner, and that while so hunting, Spahr, in the absence, of Williams and Parsons, and without their knowledge, shot with a shot-gun at a prairie chicken, and in doing so accidentally shot the plaintiff and injured him. Ve think this evidence was admissible, and that the court below did not err in allowing it to be introduced. The jury made special findings; and the findings of the jury and the judgment of the court were in favor of the plaintiff, and against the defendants. The defendants (plaintiffs in error) now claim that the findings of the jury are not sustained by sufficient evidence, and that the findings themselves are not sufficient to sustain the judgment of the court below. That the evidence sufficiently shows that Spahr is liable, we suppose will be admitted. But it is claimed that the evidence does not sufficiently show that Williams and Parsons cooperated with Spahr in his illegal hunting. It is true, the evidence is slight, and we think the jury erred in their findings. But still the question of cooperation is one of fact, and- comes clearly within the province of the jury to determine; and unless there was almost a total absence of evidence to prove cooperation, their verdict upon the question must, after its approval by the court below, be considered conclusive. This comes from an unbroken current of decisions previously rendered in this court upon the question whether this court will reverse the judgment of the district court because the verdict of the jury may seem to be against the evidence, or not sustained by sufficient evidence. We have sustained many judgments where the verdicts upon which they were founded were sustained by but very slight evidence, or were against the weight of the evidence. There was some evidence in this case to prove cooperation. It is unquestionably the duty of the district court to set aside a verdict and grant a new trial wherever the jury have manifestly mistaken the evidence. And the district courts cannot shirk their responsibility by saying that the jury are the exclusive judges of all questions of fact. For, while this is true as long as the jury have the case under their consideration, yet, when the jury have rendered their verdict, then the judge himself becomes the exclusive judge of all questions of fact; and, while he cannot reform the verdict, nor modify it in any particular, nor set it aside if it is sustained by sufficient evidence and by a preponderance of the evidence, yet, if the verdict is manifestly erroneous he should always set it aside and grant a new trial. And he must be controlled by his own judgment in the case, and not by that of the jury. Now the supreme court, under the decisions of this court, has no such authority. When the supreme court sets aside a verdict, it must also set aside the judgment. It must say, that the judge of the district court, as well as the jury, committed an error; it must say, that the-judge of the district court manifestly abused his discretion by not setting aside the verdict of the jury. And the supreme court can seldom say this. And hence, the supreme, court can reverse a judgment because the verdict is not sustained by sufficient evidence only where there is substantially a total lack of evidence to prove some material fact necessary to be found, and necessarily found by the verdict. The findings of the jury in the case at bar seem to sustain the judgment of the court below. But they have not all'been brought to this court, and hence we cannot tell to a certainty. The eighth and ninth and tenth findings, are not contained in the verdict.

The judgment of the court below must be affirmed.

Kingman, C. J., concurs.

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Concurrence Opinion

Brewer, J.:

I am unable to concur with my brethren in the conclusion they have reached in this case. It does not seem to me that the testimony, shows that the plaintiffs in error had such a common purpose with Spahr, to do an illegal act, or such a cooperation with him, as to render them responsible for the unintentional and purely accidental injury resulting from the act of Spahr. I think the judgment ought to be reversed.