Tiffin v. Forrester

• Decision Date: 31 July 1844
• Citation: 8 Mo. 642
• Parties: TIFFIN v. FORRESTER.
• Court: Missouri Supreme Court

8 Mo. 642

TIFFIN

v.FORRESTER.

Supreme Court of Missouri.

July Term, 1844.

ERROR TO THE CIRCUIT COURT OF ST. LOUIS COUNTY.

HUDSON and HOLMES, for Plaintiff. 1. A new trial should be granted when the verdict of the jury is so manifestly against the weight of evidence, that it is apparent the jury must have failed to give the cause a fair consideration, or must have mistaken the law as applied to the facts. Graham, New Trials. 2. A new trial will be granted on the ground of a surprise, by the false swearing of a witness, when the facts falsely sworn to are material to the cause, and there has been no want of diligence on the part of the party seeking the advantage of it. Graham, New Trials, 168, 172, 184; 11 Price, 383; a case cited in Han. Dig. 1524.

PRIMM and TAYLOR, for Defendant. 1. The court will not set aside the verdict of a jury unless it appear to have been manifestly against evidence, or the weight of evidence, unless palpable injustice has been done. Graham on New Trials, 362, 363; 3 Mo. R. 464, 467; 4 Mo. R. 295, 301. Verdict must be decidedly against the weight of evidence. 12 Wend. 27; 11 ibid. 143; 2 Cowen, 479; 9 Johns. R. 36. 2. When there has been conflicting testimony submitted to the jury, and the verdict supported by the testimony, the court will not disturb the verdict. 7 Mo. R. 57.

TOMPKINS, J.

This action was brought in the Circuit Court of St. Louis county, by Grandison P. Forrester against Clayton Tiffin, on a charge of negligence and unskillfulness in his practice as a physician and surgeon, in setting and curing the leg of the plaintiff, which had been fractured. Much evidence was given in the case by the plaintiff, to show negligence and want of skill on the part of the defendant, appellant, and by the appellant to prove that the plaintiff did not take due and reasonable care of himself, and that the case was a difficult one, and that the appellant had been diligent, and treated the case skillfully. Professional men were called to prove, that, under the most skillful treatment, such fractures could not sometimes be cured, so as to cause the limb to be perfectly sound and strong. The jury found the defendant guilty, and assessed the plaintiff's damages to seven hundred dollars, and judgment was given accordingly. The defendant moved to set aside the verdict, and grant him a new trial, for the reasons following, to-wit: first, the verdict was against the law, the evidence, and the weight of evidence; second, because the jury found their verdict [against] the instructions of the court; third, because the damages are excessive; fourth, because incompetent testimony was admitted to the jury.

Subjoined to these...