Kinser v. Soap Creek Coal Co.

• Decision Date: 11 May 1892
• Parties: KINSER v. SOAP CREEK COAL CO.
• Court: Iowa Supreme Court

85 Iowa 26

51 N.W. 1151

KINSER

v.SOAP CREEK COAL CO.

Supreme Court of Iowa.

May 11, 1892.

Appeal from district court, Monroe county; CHARLES D. LEGGETT, Judge.

The plaintiff commenced this action as administrator to recover damages of the defendant for negligently causing the death of one Rollin Williams. There was a trial by jury, and a verdict and judgment for the plaintiff for $300. The plaintiff appeals.J. C. Mabry and Ed Morrison, for appellant.

T. B. Perry and McElroy & Roberts, for appellee.

ROTHROCK, J.

The appeal is presented to us upon an abstract of the pleadings, the charge given by the court to the jury, and the motion to set aside the verdict and for a new trial, and the ruling of the court thereon. No part of the evidence is abstracted, and no complaint is made of the charge to the jury nor of any of the rulings of the court, except the overruling of the motion to set aside the verdict.

The motion for a new trial was grounded on the claim that the verdict was contrary to the evidence, and that it should have been for a much larger sum than $300. It is true that there were some 12 different grounds in the motion for a new trial. Some of them attacked the instructions given by the court to the jury, and others were complaints against rulings of the court upon the admission and exclusion of evidence. But as it is not shown what the evidence offered and excluded was, nor what the evidence applicable to the instructions tended to prove, these last-named grounds of the motion are not relied upon in this court. There was another ground of the motion for a new trial, which was supported by two affidavits of jurors, setting forth some of the arguments among the jurors while they were deliberating upon their verdict, which it was claimed were improper. But as this ground of the motion was manifestly not well taken the overruling of it is not assigned as error, and it demands no further consideration.

The sole question presented by the record is grounded on the claim that the verdict is contrary to the law and the evidence. The grounds for a motion for a new trial are to be found in section 2837 of the Code. There are eight causes for a new trial, and they are as follows: “(1) Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of court or referee or abuse of discretion by which the party was prevented from having a fair trial; (2) misconduct of the jury or prevailing party; (3) accident or surprise which ordinary prudence could not have guarded against; (4) excessive damages, appearing to have been given under the influence of passion or prejudice; (5) error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property; (6) that the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law; (7) newlydiscovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered, and produced at the time; (8) error of law, occurring at the trial, excepted to by the party making the application.” It will be observed that, while there is an express provision authorizing a new trial where the damages are excessive, there is no express ground based upon the insufficiency of the damages awarded by the jury; and there is no statutory cause for a new trial in such cases, unless it is to be inferred from section 2839 which is as follows: “A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, where the damages equal the actual pecuniary injury sustained.” It may properly be inferred from the language of this section that a new trial may be granted where the damages found by the jury are less than the actual pecuniary damage sustained. As the statute authorizes a motion for a new trial on the ground that the verdict of the jury is contrary to the evidence, the ruling on that motion is subject to review by appeal to this court. Our Reports abound in cases in which it is claimed that the trial court abused its discretion in refusing to grant a new trial for this cause; and so far as we are advised the question has never been presented without a complete abstract of the evidence which was submitted to and passed upon by the jury. It has been thought that this was the only manner in which the question could be presented to this court. The present appeal is a new departure, and we are asked to determine that the court should have sustained the motion without submitting the evidence to this court, that it may determine for itself whether there was an abuse of discretion. We will now proceed to consider whether the record is in such condition that we may properly determine the question.

2. The motion for a new trial was taken under advisement by the court, and was determined in vacation. It was overruled, and at the same time the learned district judge who tried the cause filed a written opinion upon the question, which, so far as pertinent to the claim that this court should hold that the verdict is contrary to the evidence, is as follows: “The plaintiff, W. D. Kinser, as administrator of Rollin Williams, deceased, obtained a verdict for three hundred dollars as damages for the death of Rollin Williams by the nelgect or wrongful act of the defendant. The plaintiff moves for a new trial because the damages allowed him are too small. The defendant resists the motion for a new trial, contending that under section 2839 of the Code a new trial cannot be granted in this action on account of the smallness of the damages. I felt at the time the verdict was returned, and still feel, that three hundred dollars is too small a sum to allow for the life of such a person as the deceased was shown to be by the evidence. He was about twenty years of age, strong, healthy, intelligent, industrious, and saving. It has been urged that the sum allowed, if placed at interest, would amount to as much at the expiration of the expectancy of deceased's life as the average man accumulates in his lifetime, and leaves as his estate. I do not take this view of the matter, and the amount of three hundred dollars seems to me to be totally inadequate as a compensation for the life of the deceased. And if the statutes permit, and it is my duty, in passing on this motion, to consider the question whether the amount allowed is too small, I shall unhesitatingly set aside the verdict, and grant a new trial. It seems to me that the amount allowed by the jury cannot be their final...