Gordon v. Brewer

189 P. 243 | Ariz. | 1920

ROSS, J.

This is an action of replevin brought by the administrator of the estate of George W. Kaiser, deceased, to recover from defendant an automobile (or its value) claimed to be the property of the estate. The defendant claimed in her answer that Kaiser in his lifetime gave the automobile to her. The case was tried before the court with a jury. The jury found the issues in favor of the defendant. A motion for a new trial was denied and judgment rendered on the verdict. The appeal is from the judgment and the order overruling motion for a new trial.

The assignments of error are about as indefinite and general as it is possible to make them. It may be gathered therefrom, however, that the plaintiff’s contention is that the evidence does not support the verdict and that the jury disregarded the court’s instructions. The trial court was of the opinion that there was evidence before the jury and signified it by refusing to' instruct a verdict in favor of plaintiff upon his motion at the close of the taking of the testimony, and by submitting, under unobjectionable instructions, the issues to the jury, and also by overruling motion for new trial based almost wholly upon the insufficiency of the evidence to support the verdict. The trial court saw and heard the witnesses, with the advantage of observing their manner and conduct, and, when challenged by proper and timely motions to set the verdict aside on the ground of the insufficiency of the evidence to support it, refused to do so ahd in effect thereby gave to it his approval.

Without setting out the evidence in support of the appellee’s claim that Kaiser gave her the automobile, we will say the testimony to that effect was direct, positive, and substantial, and, although disputed and seriously questioned, amply sufficient, if believed by the jury, to support the verdict and judgment. We have frequently announced the rule that, in such circumstances, we will not disturb the jury’s verdict.

The newly discovered evidence upon which a new trial was asked was of an impeaching and contradictory character disclosed after verdict by two persons who testified in the case in behalf of the defendant. It was similar to testimony at the trial, and therefore cumulative. It is not at all probable it would have influenced the verdict, or that upon a retrial it would cause a different result. It is not thought proper or advisable, as a general rule, to grant a new trial on newly discovered evidence that would tend only to contradict or impeach some of the witnesses, or upon evidence that is cumulative in its character. 20 R. O. L. 294, 295, §§76 ahd 77.

The judgment of the lower court is affirmed.

CUNNINGHAM, C. J., and BAKER, J., concur.