(concurring and dissenting).
I concur in the holding that the jury could reasonably regard as clear and convincing the evidence that Mrs. Giesy made a gift of the jewelry to Mrs. Lovett and that such is the proper degree of proof requisite to establish such gift. I disagree, however, with the decision that the jury verdict of $3,300 for the reasonable value of services rendered Mrs. Giesy must be overturned.
Plaintiff willingly turned the jewelry over to the executor to await a determination of her rights therein. She pleaded in her first count (and in answer to the counterclaim) that she was entitled to the jewels as a gift, and in a second count that she was entitled to reasonable compensation under a contract for services performed for Mrs. Giesy. It certainly must be conceded that it was possible for Mrs. Giesy to have made a gift of the jewelry, in the true legal sense of a gift —that is, a voluntary transfer without consideration — and also, wholly independent of such gift, to have requested and accepted the plaintiff’s services with a promise to pay for *85them under circumstances which would support a contract to pay for their reasonable value. The jury found for the plaintiff on each of these propositions separately. It is for this court merely to determine whether there was substantial, competent evidence upon which the jury could have so found, as we have stated innumerable times.1 This is not a case in equity where we may properly be concerned with the weight of the evidence.2
I think the evidence, as set forth in the main opinion, must clearly be regarded as substantial, and sufficient to meet the required quantum of “clear and convincing” proof that there was a completed gift of the jewelry. In addition thereto, and independent thereof, I believe it is equally plain that there is substantial, competent evidence from which the jury could find that there was an express contract of employment between Mrs. Giesy and plaintiff and that the services rendered were to be paid for.3 It is my opinion; therefore, that the jury could properly find the gift of the jewelry, and also, as a separate and independent proposition, find the contract of employment and the obligation to pay the reasonable value of the services performed.
I willingly admit that there is also the possibility that Mrs. Giesy in fact intended the transfer of the jewels to Mrs. Lovett to constitute payment for the services, as Mr. Justice Wade asserts. Such con-: elusion may be reasonable and may do equity. Parenthetically I observe that Mrs. Lovett was present, taking care of Mrs. Giesy, while the relatives who would otherwise inherit were afar, and not doing so. Therefore, morality and equity do not favor the latter, and in any event should have no bearing on the legal rights of the parties.
The difficulty with the solution reached in the majority opinion is that it is not in accordance with the theory upon which the case was tried in the lower court. At trial, and here on appeal, the defense was a square denial of both the gift and the contract, claiming that plaintiff had not produced substantial evidence of either. Apparently defendant felt so confident of these contentions that it did not request the court to instruct the jury that, even if it should find a valid gift of the jewelry to Mrs. Lovett and a valid contract of employment, they should also consider whether the jewelry might be regarded as a payment for the services rendered under the contract. In the absence of any such instruction, the jury was not only justified, but was obliged to treat the two counts as separate questions. No dereliction is imputable to the trial judge on that account, because. such theory was never suggested to him; the defendant made no such request, nor did it take any *86exception to the instructions as given in that regard, nor has defendant urged such theory in its brief on this appeal. The defendant having elected, both here and below, to stand on a frontal attack against the two propositions separately, and the jury having found for the plaintiff on both propositions on substantial, competent evidence, it seems to me to be an invasion of the jury’s province for this court at this juncture of the case to import another theory for its solution and thus nullify the verdict of the jury as to the contract for the payment of services.
It is the duty of an appellate court to leave jury verdicts inviolate unless there is a sound and persuasive legal ground on which it is necessary to upset them, however tempting may be any alternative expedient for settling the controversy in a way more to our personal liking. I further observe that by now importing a new theory, which plaintiff had no opportunity to meet, this court is acting inconsistent with a salutary principle to which we are committed,4 and which at the very least would require a new trial to give the plaintiff a chance to meet the theory upon which the main opinion proceeds.
I would affirm the judgment in its entirety.
. John C. Cutler Ass’n v. De Jay Stores, 1955, 3 Utah 2d 107, 279 P.2d 700.
. Stevens v. Gray, Utah, 1953, 259 P.2d 889.
.Under very similar facts on the question of contract, this court affirmed a jury verdict for plaintiff in Burton v. McLaughlin, 1950, 117 Utah 483, 492, 217 P.2d 566.
. Taylor v. E. M. Royle Corp., 1953, 1 Utah 2d 175, 264 P.2d 279; Morris v. Russell, Utah, 1951, 236 P.2d 451.