270 P. 138 | Idaho | 1928
Suit for damages alleged to have been caused by defendant's negligent collision with plaintiff's automobile. Judgment for plaintiff. From an order granting defendant a new trial, plaintiff appeals. Insufficiency of the evidence was one of the numerous grounds specified in support of the motion, but the record does not disclose upon what ground the new trial was awarded. Respondent urges none other than insufficiencies of the evidence, in effect admitting the remaining grounds meritless.
At the outset appellant contends that Lowe v. Long,
From an examination of these cases it is apparent that the material part of the rule was whether error appeared in the record warranting the granting of a new trial. This is clearly evident from the following language in Smith v. WallaceNational Bank, supra, wherein the court said (p. 447): "A careful examination of the record fails to disclose a single error committed during the course of the trial," and after discussing the essential questions in the case concludes that the trial court improperly granted the new trial. In other words, these cases indicate that the *656 merits of the controversy control and not whether error warranting the granting of a new trial was specified.
The properly allocated emphasis is stated in Bernier v.Anderson,
The granting of a new trial for insufficiency of the evidence is by no means a declaration that no conflict exists. If absence of such conflict were a prerequisite for the granting of a new trial, judges could seldom discharge their incumbent duty to grant one for insufficiency of the evidence, however convinced of perjury or miscarriage of justice. The rule of the last case has been repeatedly sustained during succeeding years, notably by Buckle v. McConaghy,
The latest expression of the rule is found in Turner v. FirstNational Bank,
"An order granting a new trial will not be reversed on appeal if it can be justified upon any of the grounds upon which the motion was made."
Such a view is the logical concomitant of the universally accepted doctrine that, upon proper motion, a trial judge should, notwithstanding a substantial conflict in the testimony, grant a new trial if he is satisfied that the verdict *657
is against the weight of the evidence. And even though there be no conflict in the testimony, the probative force and effect of the evidence is ultimately for the determination of the trial court upon the hearing of a motion for a new trial. (Meinberg v. Jordan,
Where one of the specified grounds is insufficiency of the evidence, and a new trial is granted without denominating the basis therefor, the appellate court, in the pressence of substantially conflicting evidence, will presume that the trial judge has discharged his duty under conviction that the verdict is not in accord with the great weight of the evidence and that the ends of justice would be subserved by vacating the same.
Order affirmed. Costs to respondent.
Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.
Petition for rehearing denied.