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Escolle & Wife v. Merle

9 Cal. 94 Court Cal. English

Delivered by Terry, C. J., delivered the opinion of the Court—Burnett, J., concurring.

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Majority

p. 94
ESCOLLE AND WIFE v. MERLE.

Headnote

When an appeal is taken on questions of fact alone, the Appellate Court will not disturb the verdict, when there is any evidence to support it.
Appeal from the District Court of the Twelfth Judicial District.
This action was brought to recover $870, wages due from appellant to plaintiff, Adelaide Elizabeth, before her marriage with plaintiff, Honoré Escolle.
Defendant, in his answer, alleges, that he took Adelaide, when only twelve years of age, into his family, at the request of her
p. 95
mother, to raise; and that he supported, clothed, and protected her, until her marriage with plaintiff.
On the trial, defendant tried to prove the facts set up in his answer, by the letters of plaintiff, Adelaide, but failed to prove her handwriting. The case was tried by a jury, and verdict and judgment for plaintiff.
Defendant moved the Court for a new trial, and based his motion on two grounds: first, surprise upon the trial, which ordinary prudence could not guard against; second, insufficiency of the evidence to justify the verdict.
The Court denied the motion, and the defendant appealed.
Sidney V. Smith for Appellant.
There was no evidence to justify the verdict.
The evidence showed that the respondent’s wife was taken by appellant to live with him out of charity. There was no evidence of agreement for wages. Smith’s Master and Servant, 42; Alfred v. Eitzjames, 3 Espin., 3; Murdock v. Murdock, April T., 1857; Nicholson v. Patchin, 5 Cal., 474 ; Rivers v. Chapman, July T., 1855.
5The Court erred in refusing a new trial, on ground of surprise. 3 Graham on New Trials, 953; Taylor v. California Stage Co., July T., 1856.
Isaac J. Wistar, for Respondents.
No brief.

The appeal in this case is taken on questions of fact alone.

We are of opinion that the evidence introduced by the plaintiff was sufficient, if uncontradicted, to support the verdict; and we have uniformly held that we will not interfere with the verdict of a jury, when there is any evidence to support it.

The affidavit, and counter-affidavit, filed on motion for new trial, raised a question of fact as to whether the letters mentioned contained the admissions alleged by defendant and denied by plaintiff. This question was decided by the Judge below, and, we must presume, decided correctly.

Judgment affirmed, with twenty per cent, damages, and costs.