JULIA GOULD HALL v. THE BARK "EMILY BANNING", 33 Cal. 522

By the Court, Rhodes, J.: The plaintiff testified to the value of the property in the lost trunk,' giving the value of each item. The Captain of the bark and two others testified to the statements of the plaintiff made out of Court at one time, to the effect that the articles in the trunk consisted of play hooks, etc., and were of little value, and at another time that they constituted her wardrobe, etc., and were of the value of about one thousand dollars.

The latter testimony may he regarded in two aspects: First, as evidence tending to impeach the plaintiff as a witness; and second, as evidence of admissions of a party to the suit. Regarding the plaintiff as a witness, her declarations made out of Court, differing from her statements as a witness in the case, tend to impeach her credit. And this is their only tendency. They are not competent evidence of any fact in issue.

When the proper foundation is laid by the cross examination of the witnesses as to the supposed contradictory statements, they are admissible in evidence, for the purpose of impeaching his credit. But as no foundation was laid for the admission of such statements, her credit was not shaken.' The rule is settled beyond all controversy that the admissions or declarations óf a party to a suit are admissible as evidence against the party making them. When given in evidence, they tend, as does other competent evidence, to prove the fact in issue to which they relate.

We do not understand that the result of the permission given by statute to the parties to an action to testify in their own behalf, has blended in one, the different characters of party and witness, nor obliterated the distinction between admission of parties against interest, and statements out of Court contradictory to their testimony at the trial. The testimony of the plaintiff and the evidence of her admissions, make a case of conflict of testimony upon the ' question of value of the contents of the lost trunk.

The aggregate value of the articles, as testified to by the plaintiff, was two thousand six hundred and seventy dollars, but the jury returned a verdict for three hundred and fifty dollars. The ground of the plaintiff’s motion for a new trial was, that the verdict was against and opposed to the evidence relating to the value of the contents of the trunk. The motion having been granted, the question is presented whether it is erroneous for the Court to grant a new trial, in case the evidence upon any material point is conflicting.

When value is a material question, the rule is the same where the verdict for a party is for too small a sum as it is where the verdict is against the same party.

It is said in 3 Gra. & Wat. on New Trials, 1,207, that: “If the Judge concientiously believes that the verdict is against the truth of the case, that is, contrary to the weight of the evidence, he is bound to grant a new trial * * * otherwise the power of Courts over verdicts is a mere mockery and delusion.” It has been repeatedly decided by this Court that a motion for a new trial is addressed to the sound legal discretion of the Court, and that this Court will interfere only in case of a plain abuse of such discretion.

The party alleging error in granting or refusing a new trial must make the error affirmatively appear—must show abuse of discretion. (Weddle v. Stark, 10 Cal. 301; Bensley v. Atwill, 12 Cal. 240; McCarrity v. Byington, 12 Cal. 432; Watson v. Maguire, 17 Cal. 92; Mulholland v. Heyneman, 19 Cal. 606; Quinn v. Kenyon, 22 Cal. 82; Peterie v. Bugbey, 24 Cal. 422; Hawkins v.

Reichert, 28 Cal. 535.) The verdict does not accord, in any reasonable manner, with the plaintiff’s evidence of the contents of the lost trunk or with the evidence of her declarations on that subject, and the granting of a new trial under such circumstances cannot he regarded as an abuse of discretion. Order affirmed.