101 Cal. 411 | Cal. | 1894
Action to recover damages for personal injuries sustained by the plaintiff at the hands of the defendant.
The jury rendered a verdict in favor of the plaintiff for seven hundred and fifty dollars. Upon a motion for a new trial by the defendant on the ground, among others, of insufficiency of the evidence to justify the verdict, the court made an order granting the motion, unless the plaintiff should within twenty days remit all of the verdict above three hundred dollars and costs, and, if such remission be made, that a new trial be denied. The plaintiff declined to remit, and has appealed from the order.
The evidence in the record fails to show that the actual damage sustained by the plaintiff was as great as the amount of the verdict, and the jury were not authorized to give exemplary damages unless there was some evidence of oppression, fraud, or malice. (Civ. Code, sec. 3294.)
The granting or denying a new trial on the ground that the evidence is insufficient to justify the verdict, where there is a substantial conflict in the evidence, rests so fully in the discretion of the trial court that its action is conclusive upon this court, unless it appears that there has been an abuse of such discretion; and it is immaterial whether the evidence is insufficient to sustain all or only a portion of the issues on which the judgment must depend. Whether the acts of the defendant were accompanied by oppression, fraud, or malice, so as to authorize the giving of exemplary damages, was a fact to be determined by the jury from the evidence before it, and upon this point there was a substantial conflict of evidence. The order of the judge granting a new trial shows that in his opinion the evidence was insufficient to show that there had
The order is affirmed.
G-aroutte, J., and Paterson, J., concurred.