Loomis v. Perkins

• Decision Date: 24 March 1898
• Citation: 39 A. 797,70 Conn. 444
• Parties: LOOMIS v. PERKINS et al.
• Court: Connecticut Supreme Court

39 A. 797

70 Conn. 444

LOOMIS

v. PERKINS et al.

Supreme Court of Errors of Connecticut.

March 24, 1898.

Appeal from court of common pleas, Hartford county; William S. Case, Judge.

Action by Hiram G. Loomis against Charles E. Perkins and Arthur Perkins to recover for services as a surveyor and civil engineer. The jury returned a verdict for plaintiff, which the court, on motion of defendants, set aside, from which action of the court plaintiff appealed. No error.

Roger Welles, for appellant.

Joseph L. Barbour, for appellees.

ANDREWS, C. J. The plaintiff brought his action against the defendants in the court of common pleas in the county of Hartford. In his complaint and in his bill of particulars he alleged that they were jointly indebted to him in the amount therein stated, and claimed a joint judgment therefor. The defendants denied their liability. The case was tried to a Jury, and the plaintiff had a verdict. The judge refused to accept the verdict, and returned the jury to a second and a third consideration, and then accepted it as it is recorded. The court then, upon motion, set aside the verdict, and ordered a new trial. From that order, this appeal is taken. The appeal says: "Said court erred in granting said motion of the defendants to set aside the verdict as against the evidence in said cause, because 1) said court had no power or authority to set aside said verdict on said motion; (2) the record in said cause fails to disclose anything from which improper conduct on the part of the jury in fairly weighing the conflicting testimony, and honestly and reasonably reaching their conclusion, can be legally inferred; (3) said verdict is not against the evidence in said cause; (4) said verdict is warranted by the evidence in said cause; (5) the said verdict is warranted by the evidence, by the terms of the charge of the said court to the Jury in said cause; (6) said verdict having been rendered three times by the jury after they had been returned to a second and a third consideration thereof by the court, the power of the court to set aside said verdict no longer existed."

The duty and the power of a trial judge in respect to any verdict which may be rendered by a jury in his court has been recently gone over quite fully by this court in Bissell v. Dickerson, 64 Conn. 61, 29 Atl. 226. We have no occasion to change what was then said. Since that decision trial judges have repeatedly set aside verdicts for causes which have seemed to them to require such action, and, as far as we are aware, the exercise of that power has been generally acquiesced in. Ordinarily, the power to set aside a verdict is called into action only by the motion of the party against whom the verdict was rendered; and there was, as the law formerly stood, an apparent inequality between the parties on the result of the motion. If the motion was denied, the party making it could at once take the case by a motion in the nature of an appeal to the court of errors; but, if the motion was granted, the party in whose favor the verdict was rendered, and against whom the motion was granted, could not appeal. This inequality was corrected by the legislature by the provisions of section 29, c. 194, Acts 1897. That section enacts that, "whenever any court shall set aside a verdict of a Jury in a civil cause upon the ground that it is against the evidence in said cause, the party in whose favor said verdict was rendered may appeal from the decision setting aside said verdict to the supreme court of errors in the manner herein provided for appeals, and the court shall report all the evidence in said cause to the supreme court of errors and make it a part of the record, and if said supreme court of errors shall be of opinion that such decision setting aside the verdict was erroneous it shall reverse such decision and order judgment to be entered upon said verdict in the lower court in favor of the party for whom said verdict was rendered." Motions to this court have been made many times asking that a verdict of a jury be set aside on the ground that it is against the evidence. The rule which this court follows in such cases is pretty thoroughly established by repeated decisions. It is to the effect that the verdict will not be disturbed if there is any reasonable ground appearing in the evidence on which the jury might have acted. In the present case the rule to be followed is somewhat different from the one just cited. The statute which governs this case says that in a case where a verdict is set aside by a trial judge, and an appeal is taken, the judge shall report all the evidence to the supreme court of errors, "and, if said supreme court of errors shall be of opinion that such decision setting aside the verdict was erroneous," it shall re-establish the verdict, etc. In such appeal, this court is dealing, not directly with the verdict of the jury, but with the action of the judge. The question, strictly, is not, was the verdict against the evidence? but, did the judge err? It is possibly true that, in determining the latter question, we may be required to pass upon the former one. In doing so, however, we must give all reasonable presumptions in favor of the correctness of the judge's action. In Chatfield v. Bunnell, 69 Conn. 511, 37 Atl. 1074, the plaintiff had recovered a verdict in the superior court, which the defendant moved that court to set aside, on the ground that it was against the evidence. The superior court denied this motion. The defendant then filed a similar motion to obtain the same relief in the supreme court of errors. This court was of opinion that the verdict should not be set aside for the reason stated, and, in passing on that matter, said: "Great weight is due to the action of the trial court in denying the original motion filed immediately upon the conclusion of the trial when the whole case was fresh in its recollection." The action of a trial judge is no less entitled to weight when he sets aside a verdict than when he refuses to set it aside; and for the same reasons. He has seen the witnesses, heard their...