Dye v. Denham

McCay, Judge. 1, 2. It is the settled policy of this state that a judge shall not, either in his charge or in the progress of the cause, express to the jury his opinion upon what has been proven. If he do so, it is made the duty of this court, if the judge below refuses to grant a new trial, to order one with such directions as this court may lawfully grant: Code, section 3248. That the judge did this, in this case, is unquestionable. He called their attention to the evidence as to the advice of Mr. Miller, and after saying that one who, in good faith, acted under the advice of a respectable lawyer, was not chargeable with vindictive damages, he said to the jury that in this case they could not give vindictive damages. He expressed his opinion to the jury that under the evidence, they could not on this point find for the plaintiff. He passed his judgment upon the credibility of the witnesses and on the effect of the evidence. Under the statute this was illegal, and had the jury found in accordance with the charge it would have been the duty of the judge, and if he did not do it, of this court, to grant a new trial. But the jury did not find according to the charge, and therefore this expression of opinion did no harm ; the party injured by it does not desire a new trial. The judge has, however, granted it because the jury found contrary to the charge, and that judgment is complained of. We recognize the law to be that a jury is to look to the court for the law; that as a general rule, in civil cases, a finding contrary to the charge, ought not to stand. But this is, in the main, because 230 the charge is right and the verdict, if contrary to the charge, is an illegal verdict. But suppose the charge is wrong? In such a case there is no fault in'the jury if they find contrary to it. Perhaps in a civil case the jury, whatever they may think, ought to do as the judge directs them, leaving this court to correct the error. But in this case the charge was not heeded by tfye jury — they found contrary to it. It is but natural the judge should grant a new trial, and we, in ordinary cases, where his opinion was one upon the evidence, would be slow to interfere with it, since he, the judge, has, under the statute, discretion to a certain extent in granting new trials under the evidence. At last, therefore, the question is, was there such evidence as to the want of malice on the part of the defendant below in suing out the distress warrant, as to make the verdict of the jury illegal for want of evidence. 3. We think not. True, the evidence that Mr. Miller advised him he had a right to a distress warrant is unquestioned, and we recognize the law as laid down by the judge, that one acting in good faith under such advice, ought not, even though the advice be wrong, be subjected to vindictive damages. They are a punishment intended as a warning, and it is absurd to expect that a man shall be warned from doing what he has the best of reasons for thinking to be right. But it appears that the defendant below liad, as was found by the judge on the distribution of the money, not only no claim for rent but no claim of any kind beyond $53 00. Mr. Miller’s advice did not justify a distress warrant for $339 00. It was the large claim in this distress warrant which did the harm. Had it been for the true amount due, however illegal, it is probable the defendant in it could have replevied, and thus saved the loss and sale of his property. We see nothing in the evidence to explain or justify this. So far as appears, the plaintiff in that proceeding not only used an illegal process but he used it harshly and oppresively. In the evidence on the trial it would have been competent to explain or extenuate this, but not a word was said. We think Judge Gibson overlooked this, and that, in fact, this one circumstance justi 231 fies the verdict, and if to this be added the other evidence, we do not see why the jury were not perfectly justified in their finding. These summary processes are very common. We are satisfied they are often abused, and it was not unwise in the jury to give this warning. Judgment reversed.