15 So. 2d 311 | Ala. Ct. App. | 1943
The appeal is from a judgment setting aside a verdict for the plaintiff (appellant) and granting defendant (appellee) a new trial.
The evidence was directly conflictory. The plaintiff, as his only witness, gave ample testimony on trial to sustain the recovery. The testimony of the several witnesses of the defendant, however, tended to support a contrary conclusion and justified a verdict for the defendant. We refrain from further comments upon the evidence lest they tend to influence the issues of fact upon another trial.
In this state of the evidence, the case was submitted to the jury, which returned a verdict for the plaintiff for the sum claimed in the complaint (Count 5). Upon motion for new trial, the trial court set aside the verdict and ordered a new trial.
The appeal is from this judgment granting the new trial and seeks a reversal thereof and, in effect, a reinstatement of the jury's verdict.
The record does not show upon what ground the motion for new trial was granted. Said motion, however, contained as one of the grounds, that the verdict was against the preponderance of the evidence, and, if the order was proper under this or any other ground, the trial court's action will not be disturbed. Karter v. Peck,
The favorable presumption always attending the correctness of the ruling of the trial court in such cases governs our *296
consideration of this question. Kent v. Lindsey,
It is said that this rule of presumption does not obtain where the evidence was without dispute in material respects, and the question hinges on a proper interpretation of it. American Life Ins. Co. v. Williams,
In the instant case, the evidence, in its material aspects, was conflicting, and the rule prevails that the discretion of the trial court in granting the new trial for the insufficiency of the evidence will not be disturbed, except in cases of manifest error. Cases, supra; Ala. Digest, Appeal and Error, 979(2), 933(1).
The well considered opinion by Judge Rice in the case of Kent v. Lindsey,
In the light of such rule of presumption and disadvantaged as we necessarily are in endeavoring to review and determine the correctness, vel non, of the trial court's conclusion under the conflicting evidence, in contradistinction to the one reached by the jury, we cannot say that the present record so clearly reflects such an erroneous decision of the trial judge, in granting the new trial, as to warrant judicial interference here.
The remaining assignment of error seeks to review the action of the court in giving at the instance of the defendant the general charge as to Count 1 of the complaint. This position is quite untenable. (1) The plaintiff recovered the identical sum claimed in said count, and a party obtaining a verdict is not injured by errors in instructions stating a predicate for a finding for the adverse party. W.T. Adams Machine Co. v. South State Lumber Co.,
The whole case considered, it is the opinion and judgment of the court that error of record is not shown. Of consequence, an affirmance is ordered.
Affirmed.