Thayer v. Stevens , 44 N.H. 484 ( 1860 )

Bellows, J.

The ground of the application for a new trial is that the damages assessed by the jury, and for which judgment was rendered, were not over one half the amount they should have been; and upon the facts stated it would seem probable that it was so. It is also alleged that the jury must have mistaken the rule of damages, in giving a less sum than the money in the hands of the defendant, which he received for the goods sued for; and the petitioner suggests that the jury may, and. probably did, by mistake give the plaintiff one half, upon the understanding that the deceased partner’s administrator could recover the other half. And the question arises whether, under the circumstances, this makes a case of accident, mistake or misfortune, in the meaning of the law on which the proceeding is founded.

Assuming that a mistake or misapprehension is properly alleged — although the petition merely suggests it as probable — we do not think it furnishes, under the circumstances set forth, good ground for a new trial. No complaint is made in respect to the instructions to the jury on this point; and if there had been reason to fear that the jury might misunderstand them, the counsel should have asked for more explicit directions ; or if, on the coming in of the verdict, tfie plaintiff’s counsel had perceived the evidence of such misapprehension, he should have brought it to the attention of the court, for the purpose of having the jury sent out again to revise their computation of damages, as the court might have deemed it proper to do. Lathrop v. Sharon, 12 Pick. 172 ; Raymond v. Nye, 5 Met. 154; Hagar v. Weston, 7 Mass. 110. Having failed to take either course, and no reason for the omission being assigned, and judgment having been rendered upon the verdict, we think the petitioner is too late for this application. If a new trial should now be granted it would be upon a principle that would apply to all cases where it could be proved that the verdict was caused by a misapprehension of the instructions; and this, we think, would open a wider field for such applications than has heretofore been recognized by our courts, and which would be productive of great mischief.

If the application be urged upon the ground that the verdict was against evidence, it is obvious that a motion to set it aside should have been made at the same term, when the means of determining it satisfactorily were fresh in the mind of the judge who tried the cause.

Upon either view of the application we think the facts alleged do not make a case of accident, mistake or misfortune, within the meaning of the statute ; there being stated no explanation of the delay in taking seasonable steps to avoid or correct the alleged error.

It is true that the court have power to set aside a verdict where it is manifest that injustice has been done; either because the verdict is clearly against evidence, or because it is manifest that the jury must have been mistaken, or disregarded their instructions ; but in either case the court will proceed with great caution, and will not disturb the verdict unless due diligence has been used to avoid or correct such error; Handy v. Davis, 38 N. H. 411; Dame v. Dame, 38 N. H. 429 ; so, too, it does not appear that any application was made to have judgment rendered, open to review; and although it is alleged that this omission was by accident, mistake or misfortune, yet the character of such accident, mistake or misfortune is not set forth as it should be.

Petition dismissed.