| Ala. | Nov 15, 1904
The appeal in this case is from a judgment granting a new trial. The motion assigns a number of grounds.
The record does not disclose, if that were important, upon what ground the court granted it. If it can be affirmed that it was not improperly granted upon any ground the judgment cannot be reversed. The third assignment is that “the verdict- is contrary to the evidence; and the fourth is that “the verdict is contrary to the preponderance of the evidence.”
The case was tried on the 4th and 5th counts of the complaint as amended and two pleas, numbered 1 and 3 filed thereto. Plea numbered 1 is the general issue. Plea numbered 3 is special and sets up accord and satisfaction of plaintiff’s demand before the institution of the action.
Plaintiff’s insistence is that the counts, upon which the case was) tried, sufficiently aver wanton or intentional injury. The trial court seemsl to have taken this view of them. Whether they do or do not, is not necessary to be here determihed. Assuming the correctness of this insistence, the testimony upon the issue presented by them was in conflict and the determination of that issue was for the jury. And so too, the determination of the issue presented by defendant’s special plea of accord and satisfaction was for the jury. But it does not follow from this that- the court’s action in granting the motion must necessarily be reversed. Nor did we so hold in L. & N. R. R. Co. v. Sullivan, 126 Ala. 95" court="Ala." date_filed="1899-11-15" href="https://app.midpage.ai/document/louisville--nashville-railroad-v-sullivan-timber-co-6518598?utm_source=webapp" opinion_id="6518598">126 Ala. 95, 102, as appellants counsel seems to suppose. We simply pretermitted
The rule, as wiei understand, it, applicable here, is, that “the latitude allowed to the trial court’s discretion in passing on motions for new trial is such that this court will not reverse a judgment granting the motion unless the evidence plainly and palpably supports the verdict. —Cobb v. Malone, 92 Ala. 630" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/cobb-v-malone-6514331?utm_source=webapp" opinion_id="6514331">92 Ala. 630;” Merrill v. Brantly, 133 Ala. 537" court="Ala." date_filed="1901-11-15" href="https://app.midpage.ai/document/merrill-v-brantley--co-6519527?utm_source=webapp" opinion_id="6519527">133 Ala. 537.
Where the evidence is conflicting as in this case and a new trial is granted, perhaps a more accurate statement of the rule would he that this court will not reverse the judgment unless the evidence is plainly and palpably in favor of tluei verdict. As said by the Supreme Court of Minnesota in Hicks v. Stone, 13 Minn. 434" court="Minn." date_filed="1868-07-15" href="https://app.midpage.ai/document/hicks-v-stone-7962393?utm_source=webapp" opinion_id="7962393">13 Minn. 434 (Gil. 398) : “If upon a careful perusal of the testimony and upon mature reflection, we feel satisfied that the preponderance of the evidence is; manifestly and palpably in favor of the verdict, we should deem it our duty to reverse an order granting a new trial.” This is really and practically what is meant in Cobb v. Malone, where the rule is first declared by this court, to be that decisions granting now trials will not be disturbed “unless the evidence plainly and palpably supports the verdict.” This rule is founded partly upon the fact that the trial judge’s opportunity for pronouncing upon the weight and convincing power of the testimony is better than ours. As said in Dillard v. Savage, 98 Ala. 598" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/dillard-v-savage-6515137?utm_source=webapp" opinion_id="6515137">98 Ala. 598: “The trial judge heard the testimony of the witnesses, observing their .manner, and had better opportunity for pronouncing upon its weight and convincing" power than we do>.” See also Karter v. Peck, 121 Ala. 636" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/karter-v-peck-6518037?utm_source=webapp" opinion_id="6518037">121 Ala. 636.
This consideration is appropriate to this case, and in view of it and the l-ulo' stated above, we are unable to say, after an examination of the evidence, that the court erred in ordering the new trial.
We have refrained from discussing the evidence lest what we should say might prejudice the determination
Affirmed.