HOCKADAY v. GOODWIN.

27 P. 875

1 Colo.App. 90

HOCKADAY
v.
GOODWIN.

Court of Appeals of Colorado

October 12, 1891

Appeal
from district court, Chaffee county; JOHN CAMPBELL, Judge.

Richard
W. Hockaday replevied two horses and a wagon from William W.
Goodwin. Judgment for defendant. Plaintiff appeals. Reversed.

W.D.
Wright, for appellant.

G.R.
Hartenstein, for appellee.

[1
Colo.App. 91] REED, J.

This
was an action of replevin brought by appellant for the
possession of two horses and a wagon. Plaintiff's right
to recover was based upon a chattel mortgage executed by one
William F. Gardner on the 29th day of November, 1887. Gardner
was in possession of the property at the time by virtue of a
purchase alleged to have been previously made from one F.
Tibbitts. Goodwin, the defendant, gained
[27 P. 876.]
possession of the property by an alleged purchase from
Tibbitts made on the 13th day of December following. No
questions of law are presented. The proceedings of the court
were correct and unquestioned, and the instructions to the
jury correct. It is claimed that the verdict of the jury was
not only unwarranted by the evidence, but in direct conflict
with it, and that the instructions of the court were
willfully disregarded. Such claims are shown by the record to
be well founded. The court erred in not setting the verdict
aside. Aside from the general verdict required of the jury,
there were some 10 or 12 questions submitted upon which it
was to make special findings. The general verdict was not
supported or warranted by the evidence, while several of the
special findings, notably, 1st, 2d, 7th, 8th, and 11th,
directly contravene all the evidence in the case. The court
seems to have regarded the verdict as excessive and
unwarranted by the proof in the amount of damages awarded,
and required $75 to be remitted from the sum of $250, which
was a very proper requirement, as the amount awarded exceeded
the value by that amount as fixed by the owner at the time of
the alleged sale. "A verdict of a jury which is clearly
against the evidence should be set aside." Keating v.
Pedee, 2 Colo. 526. The rule of this court, as announced in
Green v. Taney, 7 Colo. 278, 3 P. 423, is "that this
court will only interfere where, upon the whole record, it
appears that the jury acted so unreasonably in weighing
testimony as to suggest a strong presumption that their minds
were swayed by passion or prejudice, or that they were
governed by some motive other than that of [1 Colo.App. 92]
awarding impartial justice to the contending parties."
Examination of the record in this case shows it is clearly
within the exception to the rule as announced in that case. A
more willful or flagrant disregard of evidence and
instructions, and greater exhibition of prejudice, can hardly
be found. The judgment will be reversed, and the cause
remanded.