White v. Chi. & N. W. R. Co.

• Decision Date: 12 January 1910
• Court: Iowa Supreme Court
• Parties: WHITE v. CHICAGO & N. W. R. CO.

145 Iowa 389

124 N.W. 162

WHITE

v.CHICAGO & N. W. R. CO.

Supreme Court of Iowa.

Jan. 12, 1910.

Appeal from District Court, Jones County; F. O. Ellison, Judge.

The plaintiff as assignee of Asa W. Smith brings this action at law to recover damages for the destruction of a building by fire alleged to have been occasioned by the defendant's negligence. On trial to a jury there was a verdict for the plaintiff for the sum of $1, which verdict was on motion of plaintiff set aside and new trial awarded, from which order the defendant appeals. Affirmed.B. H. Miller, James C. Davis, George E. Hise, and A. A. McLaughlin, for appellant.

Cash & Rinehart and Jamison, Smyth & Gorman, for appellee.

WEAVER, J.

As will be observed from the introductory statement, the appeal we have to consider is from an order sustaining plaintiff's motion for a new trial. In argument, counsel for appellant assign and argue error alleged to have been committed by the trial court in overruling its demurrer to plaintiff's petition. This question was not involved in the ruling upon the motion for a new trial. That ruling must stand or fall on the merits of the grounds therein assigned, and we do not feel called upon to review prior rulings or orders not challenged by the motion nor involved in the issue of law thereby raised. Had there been a judgment for the plaintiff upon the merits of the controversy an appeal therefrom might well be held to permit a review of all interlocutory rulings which had been properly excepted to, but such we think is not the effect of an appeal from an order granting a new trial. It is also elementary that the granting of a new trial is so largely within the discretion of the trial court that the order will not be disturbed on appeal in the absence of a clear showing that such discretion has been abused. The inquiry for our consideration is, therefore, not whether a ruling denying a new trial would have been without prejudicial error, but is rather a question whether the record shows any reasonable ground on which the ruling granting a new trial can be sustained. For this we do not have far to seek. The court among other things instructed the jury that if it found for the plaintiff the measure of his recovery was “the fair reasonable market value of the property at the time it was destroyed,” or if the property had no market value then what the property was “actually worth,” taking into consideration its size, location, condition, material, the cost of erecting a new building of like kind, the depreciation which had taken place from time, decay, wear, and tear, and all other circumstances naturally affecting its value for any purpose or use to which it was adapted. Whether correct or incorrect, this instruction embodied the law which the jurors were bound to observe in finding their verdict. While the evidence tended to show that there was no “market” in the ordinary sense of the word for this property in the city where it was situated, it did show, without substantial controversy, that the building alleged to have been destroyed did have material and substantial value, both for the materials of which it was composed and for use as a barn or place of storage, if for no other purpose. The consensus of opinion expressed by the witnesses on this point would indicate an actual value of at least $600 to $800 for the building as distinguished...