Gordon v. Sunshine Mining Co.

• Decision Date: 15 January 1927
• Citation: 43 Idaho 439,252 P. 870
• Parties: GEORGE GORDON, G. E. HAMMER, W. J. RISNER and S. P. DEFREECE, Respondents, v. SUNSHINE MINING COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

252 P. 870

43 Idaho 439

GEORGE GORDON, G. E. HAMMER, W. J. RISNER and S. P. DEFREECE, Respondents, v. SUNSHINE MINING COMPANY, a Corporation, Appellant

Supreme Court of Idaho

January 15, 1927

APPEAL AND ERROR-FINDING ON CONFLICTING EVIDENCE-PROVINCE OF APPELLATE COURT-ALLEGED EXCESSIVE VERDICT-SHOWING REQUIRED.

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.

OPINION

TAYLOR, J.

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...