Gordon v. Sunshine Mining Co.

Decision Date15 January 1927
Citation43 Idaho 439,252 P. 870
PartiesGEORGE GORDON, G. E. HAMMER, W. J. RISNER and S. P. DEFREECE, Respondents, v. SUNSHINE MINING COMPANY, a Corporation, Appellant
CourtIdaho Supreme Court


1. Under C. S., sec. 7170, prohibiting disturbing on appeal a verdict supported by substantial evidence, weighing evidence by determining that it should not be believed is not within province of appellate court.

2. In order that verdict may be held to be excessive and the result of bias and prejudice, this fact must be made clearly to appear from the evidence.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Action for damages. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs to respondents.

Walter H. Hanson, for Appellant.

Where a verdict is without any substantial support in the evidence it should be set aside. (Studebaker Bros. v. Harbert, 35 Idaho 490, 207 P. 587; Jones v. Bartlett, 36 Idaho 433, 211 P. 555; Nelson v. Interm. Farmers Equity, 36 Idaho 518, 211 P. 550; Rippetoe v Feely, 20 Idaho 619, 119 P. 465.)

John P Gray and James A. Wayne, for Respondents.

Instruction No. 3 is identical in language with an instruction given in Page v. Savage, approved by this court in that case (42 Idaho 458, 246 P. 304).

An assignment that "the verdict and judgment are not supported by the evidence, but are contrary to the law and the evidence," is insufficient and will not be considered by this court. (Morton Realty Co. v. Big Bend Irr. Co., 37 Idaho 311, 218 P. 433; Choate v. North Fork Highway Dist., 39 Idaho 483, 228 P. 885; Hill v. Porter, 38 Idaho 574, 223 P. 538.)

The assignment is not in any respect supported by any specification of particulars. (McDonald v. North River Ins. Co., 36 Idaho 638, 213 P. 349.)

An assignment that the verdict of the jury is excessive is too general for consideration. (St. Louis Southwestern Ry Co. v. Anderson (Tex. Civ. App.), 206 S.W. 696; Andrews v. Wilding (Tex. Civ. App.), 193 S.W. 192.)

TAYLOR, J. Wm. E. Lee, C. J., and Budge, Givens and T. Bailey Lee, JJ., concur.



This is an appeal from a judgment for damages suffered by reason of an alleged breach of a contract of lease under which plaintiffs were operating in taking out ore from premises held by defendant. A motion to dismiss the appeal has been considered, and is denied.

Appellant specifies as error: (1) That the verdict and judgment are not supported by, and are contrary to, the evidence; (2) that the damages are excessive and the result of bias and prejudice and gross overestimate; (3) error in the giving of two instructions.

The specification that the verdict and judgment are not supported by, and are contrary to, the evidence has been held in many cases to be insufficient as a specification. However, no assignment or specification is made of error in the admission of the evidence complained of, but we are asked to weigh it appellant especially contending the evidence of damage is "so unreasonable and opposed to common experience" that "if it were in no way contradicted . . . . it would not support any verdict or judgment." The gist of this objection is that this evidence should not be believed. This calls for a weighing of all of the evidence of damage. This was distinctly the province of the...

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10 cases
  • State v. Elsen
    • United States
    • Idaho Supreme Court
    • December 18, 1947
    ... ... P. 622, 16 Ann.Cas. 544; State v. Abbott, 38 Idaho ... 61, 213 P. 1024, 224 P. 791; Gordon v. Sunshine Mining ... Co., 43 Idaho 439, 252 P. 870; Webster v ... McCullough, 45 Idaho 604, ... ...
  • State v. Cacavas
    • United States
    • Idaho Supreme Court
    • May 3, 1935
    ... ... v. Keyser, 38 Idaho 57, 219 P. 775; Webster v ... McCullough, 45 Idaho 604, 264 P. 384; Gordon v ... Sunshine Min. Co., 43 Idaho 439, 252 P. 870; State ... v. Boyles, 34 Idaho 283, 200 P ... ...
  • State v. Flitton
    • United States
    • Idaho Supreme Court
    • October 24, 1932
    ... ... preference to that of the defense. (Gordon v. Sunshine ... Min. Co., 43 Idaho 439, 252 P. 870; Webster v ... McCullough, 45 Idaho 604, 264 ... ...
  • Curzon v. Wells Cargo, Inc.
    • United States
    • Idaho Supreme Court
    • June 20, 1963
    ...witnesses and weight to be given their testimony is for the jury. Harper v. Johannesen, 84 Idaho 278, 371 P.2d 842; Gordon v. Sunshine Mining Co., 43 Idaho 439, 252 P. 870. I.C. § 9-201. Appellant further contends that time of performance is an essential element of a contract and that failu......
  • Request a trial to view additional results

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