State v. Shevlin-Carpenter Co., s. 10,188 - (40).

• Decision Date: 11 November 1896
• Docket Number: Nos. 10,188 - (40).,s. 10,188 - (40).
• Citation: 66 Minn. 217
• Parties: STATE OF MINNESOTA v. SHEVLIN-CARPENTER COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

66 Minn. 217

STATE OF MINNESOTA v.SHEVLIN-CARPENTER COMPANY.¹

Nos. 10,188 - (40).

Supreme Court of Minnesota.

November 11, 1896.

Appeal by plaintiff from an order of the district court for Hennepin county, Smith, J., granting a motion for a new trial, after a verdict in favor of plaintiff for $9,211.87. Affirmed.

Warner, Richardson & Lawrence and H. W. Childs, for appellant.

J. B. Atwater and A. B. Jackson, for respondent.

CANTY, J.

The plaintiff appeals from an order of the court below granting a new trial after a trial by jury and a verdict for plaintiff.The case was here on a former appeal.See62 Minn. 99, 64 N. W. 81.Appellant contends that there was no error committed on the trial, and that there was ample evidence to sustain the verdict.

1.The action is for the conversion of saw logs cut on the land of the state, and the only conflict of evidence on the trial was as to the quality and value of the logs so converted.Although we feel that the verdict is supported by substantial evidence, yet the evidence was contradictory on the points above stated, and we cannot say, under the rule laid down in Hicks v. Stone, 13 Minn. 398 (434), which has been so long followed, that the court abused its discretion in granting a new trial.

But appellant cites the case of Nelson v. Village of West Duluth, 55 Minn. 497, 57 N. W. 149, and contends on the authority of that case that the rule of Hicks v. Stone does not apply.It is true that it was held in the Nelson case that the trial court could not grant a new trial under G. S. 1894, § 5398, subd. 4, unless the damages awarded were so excessive or inadequate as to appear to have been given under the influence of passion or prejudice.The fourth subdivision has reference more particularly to cases in which there is no rule for estimating the amount of damages except that found in the discretion of the jury, as where the damages are for personal injury.But the Nelson case was not such a case.There the measure of the damages was the difference between the value of a house and lot before the commission of a certain trespass and the value afterwards.In Lane v. Dayton, 56 Minn. 90, 57 N. W. 328, the court attempted to distinguish the Nelson case on the ground that it was an action of tort, while the Lane case was an action on contract; but we can see no reason why the fourth subdivision should apply any more to an action on contract than to an action of tort, when the amount of damages must in each case be estimated by competent witnesses sworn and examined on the trial.In either case the question of excessive or inadequate damages on a motion for a new trial more properly comes under the fifth subdivision, as it does also in the case at bar.

But we are not...