State ex rel. Board of Commissioners v. Wilson

90 Ind. 114

Opinion

Elliott, J.

— It is contended by appellant that the amount awarded by the verdict and judgment is too small, and that for this reason the motion for a new trial should have been sustained. We have carefully read the evidence, and it seems clear to us that the appellant is right.

Where admissions are clearly proved and are consistent with the other evidence and circumstances of the case, they should be acted upon by the jury, unless in some way disproved or contradicted; where there is no impeaching or contradictory evidence, and the admissions testified to are corroborated by the other testimony in the case, the jury have no right to arbitrarily disregard them. In the present instance, the admissions of the principal debtor clearly show a liability for a much greater sum than that awarded, and all the evidence tends to support the admission. A prima facie case, entitling the appellant to recover a much larger sum than that allowed was clearly and fully made out, and as there was no evidence tending to disprove this prima facie case, the jury should have based its assessment of the amount of recovery upon the case thus made out.

The appellees were the sureties on the bonds executed by Yewton M. Wilson, as clerk of Scott county, and were liable for all money of the relators received by him in his official capacity, and the uncontradicted evidence shows him to have received a larger sum than that awarded by the verdict to the relators. The evidence given on the part of the plaintiff was uncontradicted, for no evidence was offered by appellees except the commission of their principal.

Judgment reversed.

Petition for a rehearing overruled.