¶1The appeal is from the judgment and from the order of the court denying a motion for a new trial. The action Avas for damages for personal injuries charged by the plaintiff to have been inflicted by the defendant upon the plaintiff.
¶2The complaint charges that the plaintiff was of the age of seventy years, in feeble health, and having previously lost the sight of one of his eyes before the injuries complained of were inflicted by the defendant. That the defendant made a violent assault upon his person, by means of which his remaining eye was destroyed; Plaintiff asked for damages in the sum of twelve thousand dollars.
¶3The answer alleges that the plaintiff made the first assault, and denies that the defendant did in any manner wound or hurt the plaintiff. The jury rendered a verdict in favor of plaintiff for the sum of two thousand dollars.
¶4Among other matters, it is assigned as error by counsel for the appellant: “That after the case had been given to the jury and they had retired, they returned into court and asked for and received instructions from the court in the absence of the defendant’s counsel; also, that the verdict *339of the jury was received in the absence of the defendant’s counsel, and that on neither of these occasions was the counsel for the defendant called.” It does not, however, appear from the statement that the defendant himself was absent on either of the occasions referred to.
¶5It was not error for the court to give instructions to the jury upon their returning into court, as stated in the transcript, in the absence of the counsel for the appellant, if the defendant was himself present, and his presence will be presumed unless his absence is shown. Comp. Laws, 412, sec. 170. Though the proper and better practice is, in such cases, that the counsel be called. Nor was it error to receive the verdict of the jury in the absence of counsel Sor the defense.
¶6There is no provision upon the subject in the civil practice act, and no authority is cited by counsel sustaining the position that so to receive the verdict is erroneous.
¶7An affidavit of one of the jurors was incorporated in the statement on which the motion for a new trial was based, to the effect that he, the juror, did not agree to the verdict.
¶8The minutes of the court show that the verdict was in writing, sigued by the foreman of the jury, that it was recorded in the presence of the jury, was then read to the jury by the clerk, and the jury asked if that was their verdict, and they said it was. It is not admissible in such a case to receive an affidavit of a juror to impeach the verdict. There was no error in the instructions given by the court; on the contrary, we think the law of the case was clearly stated in the charge of the court.
¶9Insufficiency of the evidence to justify the verdict was one of the grounds upon which the motion for a new trial was urged, and, as it appears to us, much the strongest if not the only plausible ground upon which the motion for a new trial was based.
¶10The evidence as set out in the statement is certainly very meager upon the question as to the responsibility of the defendant for the inj uries received by the plaintiff in the altercation, but we are not prepared to say that the jury might not, from the evidence, believe the defendant responsible for the injuries received by the plaintiff.
¶11The judgment must be affirmed, and it is so ordered.