Beard, Justice.
This is an action brought by the plaintiff in error against the defendant in error to recover damages for an alleged [517]*517trespass upon certain lands to which plaintiff claimed the right of possession. The damages claimed consisted of the consuming of the pasture on the land and about one ton of hay, by defendant’s sheep. The value of the pasture was. alleged to be one hundred dollars, and the value of the hay ten dollars. It was further alleged in the petition that in the commission of the unlawful acts complained of the defendant acted vindictively and maliciously and in wanton disregard of plaintiff’s rights, and he claimed nine hundred dollars additional punitive or exemplary damages. The case was tried to the court and a jury. The court charged the jury, “that the plaintiff was entitled to the possession of the land during all of the time complained about. The defendant admits that he went upon the land with his sheep. Therefore, your verdict must be in any event for. the plaintiff, and it is your duty to find the actual damage sustained by him through said acts of trespass.”
On the question of punitive or exemplary damages the court charged the jury as follows: “The plaintiff further claims that the damages sustained by him were committed wilfully by the defendant and in a wanton disregard of his rights in that respect. On this account he asks for punitive or exemplary damages. Por the purpose of inquiring whether he is entitled to such damages you have a right to consider the fact, which is not disputed, that the defendant took his sheep upon the land with the permission of Maud Binford, who, apparently, though not really, had a right to the possession of the land, and you have a right to consider this fact in determining whether you shall allow exemplary damages to the plaintiff; and if you should find that the defendant acted in good faith, believing that he had a right under the terms of his lease from Maud Binford to enter upon this land, you will allow no further damages against the defendant than that which is sufficient to compensate the plaintiff for the actual loss suffered by him.”
The jury found for plaintiff, and assessed his damages in the sum of $550.00, and judgment was entered for that amount and costs. In due time the defendant moved the [518]*518court to set aside the verdict and j udgment and grant a new trial on numerous grounds, among which was, that the verdict was not sustained by sufficient evidence. The court in its decision of the motion for a new trial found and held that none of the grounds alleged for a new trial were well founded, except the ground relating to the assessment of punitive or exemplary damages, and, as to that ground, that the evidence did not warrant or justify the assessment of such damages against the defendant. That the evidence warranted a verdict and judgment in favor of the plaintiff for one hundred and sixty dollars for the actual damages sustained by the plaintiff by reason of the trespass; that the verdict was susceptible of severance into the elements of $160 actual damages and the balance for punitive or exemplary damages. The court then entered an order, that if plaintiff would remit the excess of the judgment over one hundred and sixty dollars the motion for a new trial would he overruled, otherwise it would be sustained and a new trial granted. The plaintiff refused to enter a remitti-tur, whereupon the verdict and judgment were set aside and a new trial granted. The plaintiff having announced his intention to rely upon his exceptions to the finding of the court that the evidence did not warrant the assessment of punitive damages, and to the order granting a new trial on that ground, declined to further prosecute the action in that court, whereupon, the court entered final judgment dismissing the action at plaintiff’s costs.
The only question property before this court and which it is necessary to determine is, whether there was error in granting a new trial. It appears that in September, 1908, the plaintiff made a desert entry on the land, and thereafter made some improvements thereon and at the time of the trespass, June 28, 1911, had about eighteen acres in crops and some hay on the land. It further appears that his entry, through some mistake or misunderstanding ■ of the officers of the local land office, was shown on the records of said office to have been cancelled on May 27, 1911, and was so understood by said officers.. On June 11, 1911, Maud [519]*519Binford applied at said office and was permitted to, and did, make a desert filing or entry on said land, and it was by her permission that defendant went upon the land with his sheep. It further appears that he instructed his herder not to allow the sheep to go upon the crops then on the land, or to destroy the hay, but on one or more nights they did go upon the hay and ate and destroyed about a ton thereof. There was also evidence to the effect that defendant had contested a prior homestead entry of the land by one Jones, which entiy was relinquished and cancelled prior to the entry made by plaintiff, and that it was upon defendant’s application or protest that the entry of plaintiff was marked cancelled upon the records of the local land office. In subsequent proceedings in the land office brought by plaintiff against Maud Binford, her entry was on February 16, 1912, held for cancellation subject to the right of appeal, which was not taken, and her entry- was therefore cancelled and plaintiff’s entry reinstated as of the date of its cancellation.
Counsel for plaintiff in error has argued the case on the theory that if there was any competent evidence sufficient to take the case to the jury on the question of punitive or-exemplary damages, the court was without authority to disturb or set aside the verdict. But we do not think that is the law. The statute provides that the verdict shall be vacated and a new trial granted by the District Court on the application of the party aggrieved for any of the causes enumerated in the section, affecting materially the substantial rights of such party. One of the causes so enumerated is, that the verdict is not sustained by sufficient evidence. (Sec. 4601, Comp. Stat. 1910). The correct rule on the question is concisely and clearly stated in the' case of Dewey v. Chicago, &c., R. Co., 31 Iowa, 373, as follows: “We therefore avail ourselves of this occasion to correct what we understand to be a very general misapprehension on the part of District and Circuit Judges in respect to the rule as to new trial in the nisi prius courts. This court has repeatedly declared the rule for itself (and such is the rule in most appellate tribunals), that where the evidence is [520]*520conflicting and the nisi prius court has overruled a motion for a new trial, grounded upon the insufficiency of the evidence, that we will not interfere. And this because, first, the jury have found the verdict and given credit to the witnesses on the one side of the conflict; second, the judge, who also heard the testimony from the mouths of the witnesses, and weighed the same in the balance of his more cultured and accurate legal judgment, has, by overruling the motion, given his approval and endors'ement to the verdict; and third, this court can never have the benefit of observing the conduct and deportment of the witnesses while testifying, nor even the peculiarity of their expressions, but generally only the substance of their testimony, and often in the language of the attorneys interested in the case.” (In this court we have the evidence at length as given on the trial.) “A
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Beard, Justice.
This is an action brought by the plaintiff in error against the defendant in error to recover damages for an alleged [517]*517trespass upon certain lands to which plaintiff claimed the right of possession. The damages claimed consisted of the consuming of the pasture on the land and about one ton of hay, by defendant’s sheep. The value of the pasture was. alleged to be one hundred dollars, and the value of the hay ten dollars. It was further alleged in the petition that in the commission of the unlawful acts complained of the defendant acted vindictively and maliciously and in wanton disregard of plaintiff’s rights, and he claimed nine hundred dollars additional punitive or exemplary damages. The case was tried to the court and a jury. The court charged the jury, “that the plaintiff was entitled to the possession of the land during all of the time complained about. The defendant admits that he went upon the land with his sheep. Therefore, your verdict must be in any event for. the plaintiff, and it is your duty to find the actual damage sustained by him through said acts of trespass.”
On the question of punitive or exemplary damages the court charged the jury as follows: “The plaintiff further claims that the damages sustained by him were committed wilfully by the defendant and in a wanton disregard of his rights in that respect. On this account he asks for punitive or exemplary damages. Por the purpose of inquiring whether he is entitled to such damages you have a right to consider the fact, which is not disputed, that the defendant took his sheep upon the land with the permission of Maud Binford, who, apparently, though not really, had a right to the possession of the land, and you have a right to consider this fact in determining whether you shall allow exemplary damages to the plaintiff; and if you should find that the defendant acted in good faith, believing that he had a right under the terms of his lease from Maud Binford to enter upon this land, you will allow no further damages against the defendant than that which is sufficient to compensate the plaintiff for the actual loss suffered by him.”
The jury found for plaintiff, and assessed his damages in the sum of $550.00, and judgment was entered for that amount and costs. In due time the defendant moved the [518]*518court to set aside the verdict and j udgment and grant a new trial on numerous grounds, among which was, that the verdict was not sustained by sufficient evidence. The court in its decision of the motion for a new trial found and held that none of the grounds alleged for a new trial were well founded, except the ground relating to the assessment of punitive or exemplary damages, and, as to that ground, that the evidence did not warrant or justify the assessment of such damages against the defendant. That the evidence warranted a verdict and judgment in favor of the plaintiff for one hundred and sixty dollars for the actual damages sustained by the plaintiff by reason of the trespass; that the verdict was susceptible of severance into the elements of $160 actual damages and the balance for punitive or exemplary damages. The court then entered an order, that if plaintiff would remit the excess of the judgment over one hundred and sixty dollars the motion for a new trial would he overruled, otherwise it would be sustained and a new trial granted. The plaintiff refused to enter a remitti-tur, whereupon the verdict and judgment were set aside and a new trial granted. The plaintiff having announced his intention to rely upon his exceptions to the finding of the court that the evidence did not warrant the assessment of punitive damages, and to the order granting a new trial on that ground, declined to further prosecute the action in that court, whereupon, the court entered final judgment dismissing the action at plaintiff’s costs.
The only question property before this court and which it is necessary to determine is, whether there was error in granting a new trial. It appears that in September, 1908, the plaintiff made a desert entry on the land, and thereafter made some improvements thereon and at the time of the trespass, June 28, 1911, had about eighteen acres in crops and some hay on the land. It further appears that his entry, through some mistake or misunderstanding ■ of the officers of the local land office, was shown on the records of said office to have been cancelled on May 27, 1911, and was so understood by said officers.. On June 11, 1911, Maud [519]*519Binford applied at said office and was permitted to, and did, make a desert filing or entry on said land, and it was by her permission that defendant went upon the land with his sheep. It further appears that he instructed his herder not to allow the sheep to go upon the crops then on the land, or to destroy the hay, but on one or more nights they did go upon the hay and ate and destroyed about a ton thereof. There was also evidence to the effect that defendant had contested a prior homestead entry of the land by one Jones, which entiy was relinquished and cancelled prior to the entry made by plaintiff, and that it was upon defendant’s application or protest that the entry of plaintiff was marked cancelled upon the records of the local land office. In subsequent proceedings in the land office brought by plaintiff against Maud Binford, her entry was on February 16, 1912, held for cancellation subject to the right of appeal, which was not taken, and her entry- was therefore cancelled and plaintiff’s entry reinstated as of the date of its cancellation.
Counsel for plaintiff in error has argued the case on the theory that if there was any competent evidence sufficient to take the case to the jury on the question of punitive or-exemplary damages, the court was without authority to disturb or set aside the verdict. But we do not think that is the law. The statute provides that the verdict shall be vacated and a new trial granted by the District Court on the application of the party aggrieved for any of the causes enumerated in the section, affecting materially the substantial rights of such party. One of the causes so enumerated is, that the verdict is not sustained by sufficient evidence. (Sec. 4601, Comp. Stat. 1910). The correct rule on the question is concisely and clearly stated in the' case of Dewey v. Chicago, &c., R. Co., 31 Iowa, 373, as follows: “We therefore avail ourselves of this occasion to correct what we understand to be a very general misapprehension on the part of District and Circuit Judges in respect to the rule as to new trial in the nisi prius courts. This court has repeatedly declared the rule for itself (and such is the rule in most appellate tribunals), that where the evidence is [520]*520conflicting and the nisi prius court has overruled a motion for a new trial, grounded upon the insufficiency of the evidence, that we will not interfere. And this because, first, the jury have found the verdict and given credit to the witnesses on the one side of the conflict; second, the judge, who also heard the testimony from the mouths of the witnesses, and weighed the same in the balance of his more cultured and accurate legal judgment, has, by overruling the motion, given his approval and endors'ement to the verdict; and third, this court can never have the benefit of observing the conduct and deportment of the witnesses while testifying, nor even the peculiarity of their expressions, but generally only the substance of their testimony, and often in the language of the attorneys interested in the case.” (In this court we have the evidence at length as given on the trial.) “A mention of these considerations upon which the rule for the appellate courts is (in part) founded, is sufficient to show that the rule ought not and does not have any application whatever to the wist 'prius courts. Those courts ought to independently exercise'their power, to grant new trials, and, with entire freedom from the rule which controls appellate tribunals they ought to grant new trials whenever their superior 'and more comprehensive judgment teaches them that the verdict of the jury fails to administer substantial justice to the parties in the case. Whenever it appears that the jury have, from any cause, failed to respond truly to the real merits of the controversy, they have failed to do their duty, and the verdict ought to be set aside and a new trial granted.” This rule is supported by many decisions and clearly shows the difference in the functions of trial, and appellate courts with respect to setting aside verdicts on the ground that they are not sustained by sufficient evidence. (Clark v. Great Northern R. Co., 37 Wash. 537, 79 Pac. 1108, 2 A. & E. Ann. Cases, 760, and notes; McMahon v. Rhode Island Co., 32 R. I. 237, 78 Atl. 1012, 25 A. & E. Ann. Cases (1912D) 1223, and notes. It is to the trial court that the application for a new trial must be made and it is the judgment of that [521]*521court that must be invoked, at least in the first instance; and when the statute declares that a verdict shall be set aside and a new trial granted because the verdict is not sustained by sufficient evidence, it imposes on the trial court the duty of determining, in the light of its superior knowledge of the law and the application of legal principles to the evidence in each particular case and with due regard to the finding of the jury, whether or not substantial justice warrants the verdict. If after such consideration and in the exercise of sound discretion the trial court concludes that the evidence is insufficient, it is not only authorized but it is its duty to set the verdict aside; and unless it be made to appear to the appellate court that the trial court abused its discretion or that its conclusion was manifestly erroneous its judgment will not be reversed. In this case we think the court was warranted, notwithstanding the verdict to the contrary, in concluding that the evidence was insufficient to establish a wanton disregard of plaintiff’s rights, or that the defendant acted vindictively or maliciously. As said by the court in its instructions to the jury, the fact was not disputed that the defendant took his sheep upon the-land with the permission of Maud Binford, who, apparently, though not really, had a right to the possession of the land, thus negativing any inference of bad faith on the part of defendant. The court proposed to allow the judgment to stand for the highest amount of actual damages testified to by any witness, which offer plaintiff declined and insisted upon something more by way of punishment of defendant. The court concluded that the evidence was insufficient to warrant the recovery of punitive or exemplary damages; and with that conclusion we agree. The judgment of the District Court is affirmed.
Affirmed.
Potter, C. J., and Scott, J., concur.