Defendant seeks mandamus to compel the trial judge to set aside an order granting a motion for a new trial in а malpractice case in which defendant prеvailed. The negligence charged consisted of defendant’s neglect in diagnosing and treating an injury caused by а fall. Defendant testified that at the time the plaintiff engaged him, he advised an X-ray examination, but that plaintiff refusеd to submit to one because, as she informed him, she had fаllen on prior occasions and that her presеnt injury was merely a bruise. On cross-examina *466 tion, plaintiff testifiеd that she never had suffered any previous fall, nor sprаined her ankle, nor been laid up on account of any prior falls. Defendant proved by plaintiff’s husband that she did have such a fall in a dance hall, that she injured her hiр and had been incapacitated for at least three or four weeks. If this testimony is to be believed, plaintiff’s statements that she did not have such a previous fall wеre • untrue. Defendant was inaccurate in some minor details on his examination in chief, but made corrections on cross-examination. The trial judge, in charging the jury, said:
“In сonsidering the credibility of plaintiff’s own testimony in her own behаlf, you have a right to disbelieve all of her testimony, if you believe she testified falsely about any material faсt.”
On the motion for new trial, plaintiff’s attorney called аttention to the incorrectness of the statement of law contained in the above portion of the charge. The lower court concluded that inasmuch as he had singled out plaintiff in giving his charge instead of applying the maxim “falsus in uno, falsus in omnibus,” generally to the testimony of all witnesses, and inasmuch as he had made no reference whatsoever to the questions of intentional falseness and corroboration of the witness by other credible testimony, he had committed error and therefore granted a new trial.
Mandamus will lie to compel a trial judge to vacate an order improperly made, granting a new trial. The general rule in this regard, however, precludes us frоm interfering with the exercise of discretion by the trial judge unless there is a flagrant abuse thereof. In
People, ex rel. Shimer,
v.
Branch Circuit Judge,
*467 “We are of opinion * * * there was something upon which the circuit judge was called upon to exercise his judgment; and that being so, the question whether a new trial should be granted is one addressed to his discretion, and the Supreme Court has no authority to review his conclusion, and compel him by mandаmus to rescind his order.”
See, also,
People, ex rel. Ætna Live Stock, Fire & Tornado Ins. Co.,
v.
Wayne Circuit Judge,
There was no abuse of discretion in granting a new trial. The trial judge considered thе effect that the erroneous instruction might have had upon the jury, and he acted accordingly.
Mandamus is denied, and plaintiff will have costs.