Cables v. Bristol Water Co. , 86 Conn. 223 ( 1912 )

The issues before the jury were whether the defendant had appropriated one large brook running through plaintiff's milk and fruit farm, and had seriously polluted the waters of this brook for four years, and those of another large brook running through the farm for eight years, and what damages the plaintiffs had suffered in consequence.

The trial judge set aside the verdict solely because excessive. It must be conceded upon the evidence that the jury might have found that the plaintiffs suffered substantial damage.

The jury were instructed to find the actual damages, which they might measure by the injury to the rental value. The damages, on the evidence, were dependent upon the loss in rental value. The plaintiffs offered evidence, which was uncontradicted, of the gross and net income from the farm, and some six, apparently disinterested, witnesses, testified in behalf of the plaintiffs as to the value of the farm and its rental value before and after the acts complained of, and as to the diminution in value and rental value of the farm caused by these acts.

The judgment of these witnesses rested upon adequate personal knowledge and apparent careful investigation, and was supported by good reason. It was neither unreasonable nor improbable in character. The witnesses were, so far as the record shows, entirely credible; in some instances they were men who now hold or had held public positions of prominence.

On the part of the defendant three witnesses testified as to the value of the farm from an examination made during the trial, but made no estimate of its value before the acts complained of, and only one of these testified as to the rental value of the farm.

Between this conflict of evidence as to damage the judge left its determination to the jury. If the jury credited the testimony of the plaintiffs' witnesses as to damages, they must have rendered as large a verdict as they did. On the verdict being reported the trial judge did not return them to its further consideration. In setting aside the verdict he did not set it aside conditionally.

My brethren think the action of the trial court should be held within the exercise of its discretion. The emphasis which the opinion places upon the trial court's exercise of discretion makes it important to point out that the discretion the trial judge exercises is a legal discretion. "A court has some discretion in the matter of a new trial, but it is a legal discretion. It should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption, or partiality." Burr v. Harty, 75 Conn. 127, 129,52 A. 724; Fell v. Hancock Mut. Life Ins. Co.,76 Conn. 494, 496, 57 A. 175; Wood v. Holah, 80 Conn. 314,315, 68 A. 323.

We think the court in upholding the discretion of the trial judge lost sight of our rule that his discretion should be exercised within the limitations of the rule of law just quoted.

In this case the controverted issue of damage rested upon the credit to be attached to variant testimony, in a case where the conclusion of the jury could not be held unreasonable or partial, indeed where the preponderance of the evidence pointed to the correctness of their conclusion. "It is true that the jury is a tribunal which is regarded by the law as one especially fitted to decide controverted questions of fact upon evidence. The jury decides how much credibility is to be given to each witness, what weight justly belongs to the evidence, and between the statements of hostile and contradictory witnesses, where the truth is; and if the verdict to which they have agreed is a conclusion to which twelve honest men, acting fairly and intelligently, might come, then their verdict is final and cannot be disturbed. In such a case if the trial judge should set aside their verdict he would be himself in error. He would pass the true bounds of his own function and invade the province of the jury. It is only when the verdict is manifestly and palpably against the evidence in the case — so much as to indicate that the jury was swayed by passion, by ignorance, partiality or corruption — that it should be set aside on that ground and a new trial granted." Howe v. Raymond, 74 Conn. 68, 71, 49 A. 854. "On every appeal of this character the controlling question is whether the conclusion is one which the jury might reasonably have reached; one to which twelve honest men acting fairly and intelligently might reasonably have come. If it is, the verdict should stand; if it is not, it should be set aside." Steinert v. Whitcomb,84 Conn. 262, 263, 79 A. 675.

The memorandum of the trial judge in setting aside the verdict indicates that the judge exercised his discretion under a misapprehension of the evidence.

A long and expensive trial has come to naught. The State as well as the litigant is the loser. This result is to be deplored and should be avoided unless the case be such that the trial judge acting within hislegal discretion ought to set aside the verdict. In my opinion there was manifest error in setting aside the verdict.