
    NIAU IAUKEA AND J. K. IAUKEA, Her Husband, vs. W. H. CUMMINGS.
    Exceptions.
    Hearing, September 25, 1894.
    Decision, October 15, 1894
    Judd, C.J., Bickerton and Erear, JJ.
    Verdict held not contrary to the evidence.
   Opinion oe the Court, by

Fbear, J.

The only question presented by the exceptions is whether the verdict is supported by the evidence. The action is for $5000 damages for injuries alleged to have resulted from an assault and battery by the defendant upon Mrs. laukea, one of tbe plaintiffs. The jury awarded $500 damages.

J. L. Kaululcou and Enoch Johnson, for plaintiffs.

W. C. A chi, for defendant.

The witnesses for tbe respective parties agree on some points and differ on others, but from the evidence as a whole, the jury, who were the sole judges of the credibility of the witnesses and the weight of the evidence, would be justified in finding that Mrs. laukea and Mr. Cummings had some hot words about a ditch, and that in consequence, while they were on defendant’s land, and perhaps after he had requested her not to come upon the same, or to leave the premises, he attempted to remove her, and in order to do so, pushed her once or twice so that she fell upon a pile of stones, with the result that her dress was torn and her right shoulder dislocated. It cost her thirty dollars to have the shoulder set and attended to, and she suffered more or less pain. It was for the jury to say, from the evidence, whether the defendant first requested the plaintiff to leave his premises, wdiether he used unnecessary force to remove her in case she refuse to go, and if so, how much she was damaged in consequence. The law is well settled that this Court cannot pass upon such questions as these. It can set aside a verdict as contrary to the evidence only when it must account for the verdict on the ground of prejudice or mistake on the part of the jury. It .is unnecessary to account for the verdict on these grounds in this case.

Defendant’s counsel requested us to consider also the. question whether under the Married Women’s Act of 1888, it is not error to join the husband as plaintiff in this action which is for a tort against the wife alone. This question was raised in the Circuit Court by a demurrer which was overruled, but the record does not show that any exception was taken or allowed to the overruling of the demurrer, nor was there any other proof of such exception, and therefore we cannot consider it.

The exceptions are overruled.  