
    Nancy S. Stites v. Administrator of Alexander McKibben.
    ■Surprise to a party, arising from the unexpected statements of a witness, who bad been twice before examined in tbe case, without disclosing the facts to which he now testifies, does not lay a sufficient ground for a new trial, when the verdict is justified by the other evidence in the case, and substantial justice is done.
    If this ground is ever sufficient, it can only be when such new statement constitutes the turning point in the case, and without which the party moving would be entitled to the verdict.
    A judgment will not be reversed for overruling a motion for a new trial, for this cause, where it does not appear from the record, that the verdict might not have been so justified.
    As a general rule, depositions read in evidence should be sent to the jury, on their retirement.
    But where part of a deposition,'which could not be separated from the balance without mutilation, contained incompetent evidence which was ruled out: Held, that the court might, in the exer.cise of its discretion, refuse to send it to the jury.
    Error to the district court of Clermont county.
    *The judgment sought to be reversed was rendered in an .action of assumpsit, brought by the plaintiff in error against the defendant in error, to recover the value of services rendered to the defendant’s intestate. The charge of the district court, delivered to the jury by Thurman, J., fully shows the nature of the controversy in that court; and since it is excepted to, it is here inserted entire:
    
      “ Gentlemen of the jury,—A few words are all that is necessary to say to you. The plaintiff claims for services rendered for Alexander McKibben, of whose estate the defendant is administrator. If she worked for McKibben under a special contract which remains in.force, you will be governed by the terms of the contract. If she worked under an express promise of payment, of course she became entitled to wages for what work she did. If there was no special contract or promise, yet if she worked for him with his assent and for his benefit, then the law presumes that it was at his request, and that she was to be paid, unless the contrary appears. In this case the defendant contends that the contrary does appear. He insists that the work was done with an understanding that it was not to be paid for otherwise than by the boarding, lodging, clothing, etc., furnished by McKibben to her—that is, that the one was to' offset the other. If the proof establishes such an understanding, the plaintiff can not recover; but if no such understanding is proved, either by direct or circumstantial evidence, you will inquire what was the value of her services, and if - you find it exceeds the value of boarding, lodging, clothing, and other matters or things, if any, provided for her by McKibben, you will find a verdict in her favor for the difference, with interest, from the time the demand was made on the administrator, to wit, September 18, 1850. We are asked to charge you that, if she was promised more than ordinary wages, she can recover the extraordinary compensation. Certainly a person may recover more than usual.wages for his work, if he has performed it under a promise of a greater price; but to constitute such a special and binding agreement for extra *compen-' sation, there must be some certainty in the promise. It must be a certain amount, or rate, or at least be sufficiently certain to enable the jury to ascertain what was promised. If it was merely a promise to pay well, liberally, or the like, it does not authorize a jury to give whatever sum they may think liberal or handsome. There is no sufficient certainty in such a promise to authorize the jury to disregard the true value of the services. When there is nothing more definite in the promise, the real value of the services is all that can be recovered. While upon this sifbject, it is proper to say that, in* estimating the value of the plaintiff’s services, you should consider' the character in which she served, whether as landlady, housekeeper, or common hired girl, and ascertain the wages proper for her services, in the character in which she acted. In what we have said, gentlemen, you will not understand us as expressing any opinion as to what are the facts in the case. It is not the business of the court to decide upon them. Our duty is merely to tell you. what is the law. It is your province to decide what are the facts, and these you are to find from the evidence, and from that alone.”’
    The verdict being for the defendant, the plaintiff moved for a new trial, for reasons shown in the opinion of the court. The motion being overruled, and judgment entered on the verdict, the-plaintiff excepted, and now assigns for error the overruling of that, motion.
    
      J. Jolliffe, for plaintiff.
    
      Mshback & Swing, and Jamieson, in pro. per., for defendant.
   Rannet, J.

The plaintiff relied upon three grounds for a new trial, and now assigns the qverruling of them as sufficient to reverse the judgment, viz: 1. The plaintiff was surprised by the testimony of Bernard Pompilly; 2. The court erred in the charge to the jury; and, 3. The court erred in not permitting the jury to take with them, when they retired to consider of their verdict, certain depositions that had been read in evidence. The case, although important *to the parties, presents very little 'of sufficient interest to the profession to justify an extended report. We have' carefully considered the errors assigned, and are of opinion that neither of them requires us to disturb the judgment of the court below.

1. Pompilly had testified twice before in the case, and upon this, trial stated certain matters, supposed to be material to the issue, that he had not before mentioned, alleging as the reason that he had not before been asked the question; and this constituted the ground of surprise for which a new trial was asked. Surprise upon a party, not arising from his own negligence, will constitute a good ground for a new trial, when it has resulted in clear and unquestionable injury to him. The cases cited by plaintiff’s counsel fully prove this to be the doctrine, and most of them present very proper circumstances for its application. But the bill of exceptions in this ease does not profess to set out all the evidence; how, then, is it possible for us to say that the other evidence in this case, if Pompilly’s testimony had been altogether rejected, did not fully justify the'verdict that was rendered? If it did, most clearly it should not have been disturbed., *■

New trials are granted to subserve the purposes of substantial justice, and not for technical reasons, when that has been attained. But, aside from this, the plaintiff was deprived of no evidence she offered, and the defendant gave none that he had not before used, except some additional statements made by a single witness. A little observation will teach any one how very frequently this occurs, especially in cases where the witnesses are very numerous; sometimes, honestly, from forgetfulness or inadvertence before, and sometimes manufactured to serve the interests of a party. "Without saying that it can never lay the ground for a new trial, it is evident unless new trials are to be granted in almost every strongly litigated case, that the statement must have constituted the turning point in the case, without which the party moving would have been entitled to the verdict, *to justify the court before which the trial takes place, in setting it aside; much less would it otherwise furnish justification to a reviewing court, not in pQssession of all the facts and circumstances attending the trial, in reversing the judgment of a court that was moved to grant a new trial, and in the exercise of a sound discretion had refused to interfere.

2. Several objections of minor importance are taken to the charge of the court. The charge was in writing, and is spread out in full upon the record. We have carefully examined it, and think it left the whole case upon the facts fairly to the jury, and, without going into detail, it is sufficient to say that it meets our entire approval.

3. Certain depositions that were read in evidence, were not permitted to be taken by the jury upon their retirement. This presents a question of some practical importance.

Whether it is not purely a question of practice, within the discretion of the court, as can not be reviewed on error, it is not necessary now to determine, but we assume that it may be. By the English practice, it is well known, depositions are never sent to the jury. A different practice, so far as we are advised, has generally prevailed in this state, and we think with better reason.

Having possession of the depositions enables the jury to refresh itheir recollection of the testimony without the least danger of being misled, and at once settles all difference among them as to what the testimony actually was, so far as it may be contained in depositions.

But these advantages may, in some cases, be more than counterbalanced by evils and inconveniences; and when they are, such cases should be made exceptions to the general rule. The reason of the refusal in this case is not stated; and when it is not, we are at liberty to assume any state of case that might have justified the action of the court. We will assume it to have been what one member of this court knows it was—that parts of the depositions, incapable of separation from the balance without mutilation, contained incompetent evidence, which was ruled out by the court. In *sueh case, it would be plainly improper to send the rejected evidence, where it might be perused by the jury; and plainly impossible, consistent with the right of the party, to except to the opinion of the court for ruling it out, or upon a motion for a new trial, to send the balance without it. The court were right, therefore, in the exercise of a sound discretion, in requiring the jury to recollect such parts of the testimony contained in the depositions, ■as were permitted to be given in evidence, as they were obliged to recollect that given by witnesses upon the stand.

The judgment must be affirmed.  