Hubbard Bros. Construction v. C. F. Halstead Contractor, Inc.

321 So. 2d 169, 294 Ala. 688, 1975 Ala. LEXIS 1271

• Court: Supreme Court of Alabama
• Decided: September 25, 1975
• Docket: SC 908
• Status: Published

Opinions

BLOODWORTH, Justice.

The sole question presented by this appeal is whether the trial judge erred in granting defendant’s motion for new trial. The motion contains the ground that the verdict is contrary to the great preponderance of the evidence. In ruling, the judge gave no reason for his decision. The evidence was in conflict. We say that he did not err and affirm.

The facts upon which this appeal rests are stated in the dissenting opinion of Mr. Justice Jones and need not be repeated here.

From the second Monday in May, 1820, when the Supreme Court of Alabama first met at the capítol in Cahawba,¹ to this present day perhaps no principles of Alabama law have been more uniformly settled or more frequently cited than those pronounced in Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891).

In that leading case, Justice Clopton wrote for the Court, inter alia:

“ * * * and lay down as rules for the guidance of this court, that the decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that' it is wrong and unjust. And decisions granting new trials will not be reversed, unless the evidence plainly and palpably supports the verdict. * * *”

The reason for the rule is clearly stated.

“[The trial judge] has heard and seen the witnesses testify, observed their tone and demeanor, and noticed their candor, or convenient failure of memory, to avoid impeachment, or for other improper purpose. The appellate court, possessing none of these aids and advantages, and receiving the evidence on paper 'only, is less qualified to determine what evidence is unworthy of belief, what weight should be given to that which has been rejected by the jury, and may give undue weight to the testimony of some of the witnesses. * * * ” [Our emphasis.]

Following the decision in Cobb v. Malone, this Court has laid down the rules respecting appellate review of rulings on motions for new trial. These rules have been followed in countless hundreds of our cases. Every present member of this Court has concurred in one or more. We would take this opportunity to reaffirm Cobb v. Malone and its progeny and to summarize those rules applicable to this present case.

1. Granting or denying a new trial motion is a matter resting largely in the discretion of the trial judge and exercising it carries a presumption of correctness. Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973); App. & Error ®=933(1), Vol. 2A, Alabama Digest.

2. When the trial court grants a new trial motion, without specifying the grounds therefor, the ruling must be sustained on appeal if any good ground is presented by the motion. Johnson v. Hodge, supra; App. & Error ®:854(6), supra.

3. When the trial court grants a new trial, without specifying the grounds therefor, and one of the grounds is that the verdict is contrary to the evidence, the appellate court presumes that it was because the trial court concluded the verdict was contrary to the great preponderance of the evidence or the verdict was unjust in the light of the evidence. Jones v. Strange, 289 Ala. 76, 265 So.2d 860 (1972); Kennedy v. General Transport Company, Inc., 293 Ala. 455, 304 So.2d 896 (1975); App. & Error <®=933(1) (4), supra.

4. In such circumstances as 3, the appellate court will not reverse the order granting a new trial unless it appears that the great weight of the evidence plainly and palpably shows the trial court was in error. Jones v. Strange, supra; App. & Error <®==>1015(3), supra.

5. In such circumstances as 3, and where the evidence is in conflict and when, upon a review thereof, the appellate court cannot say that the great weight of the evidence plainly and palpably supports the jury’s verdict or it is not convinced that the evidence plainly and palpably shows the trial court to be in error, then the order granting a new trial should not be disturbed. ConAGRA, Inc. v. Masterson, 290 Ala. 273, 276 So.2d 134 (1973); Kennedy v. General Transport Company, Inc., supra; New Trial <®=71, 72(9), Vol. 15A, Alabama Digest.

Almost sixty years ago, this Court settled the question as to the legal effect of the last sentence of Act No. 656, Acts 1915, p. 722 [now codified at Tit. 7, § 764, Code of Alabama 1940], that no presumption in favor of the correctness of the trial court’s ruling in granting or refusing a new trial shall be indulged by the appellate court.

In Hackett v. Cash, 196 Ala. 403, 72 So.52 (1916), this Court held, in an opinion authored by Chief Justice Anderson, that a similar provision of Act No. 722, Acts 1915, p. 824, was not intended to override a long line of decisions as to what weight should be accorded the trial judge’s conclusion upon the facts. If it was so intended, it would constitute an “invasion of the judiciary,” the Court held.

Just a year later in Hatfield v. Riley, 199 Ala. 388, 74 So. 380 (1917), this Court was faced squarely with the question as to the effect of this rule of presumption in favor of the' trial court’s ruling on motion for new trial. Justice Gardner wrote for the Court that, because the trial judge (in a jury trial) had the witnesses before him and had the advantage of observing their manner and demeanor on the stand, the presumption is in favor of his ruling on motion for new trial. He observed: “This rule has not been changed by recent legislative enactment. Acts 1915, p. 722.” He then added: “The reasoning in the cases of Hackett v. Cash, 196 Ala. 403, 72 So. 52, and Finney v. Studebaker, 196 Ala. 422, 72 So. 54, applies to the above cited act.” These cases clearly demonstrate that the legislative addition to the Code by the enactment of Act 656, Acts 1915, p. 722, has not been overlooked by subsequent courts applying Cobb’s rule.

The case of Castleberry v. Morgan, 28 Ala.App. 70, 178 So. 823 (1938), cited in Justice Jones’ dissent, insofar as it may conflict with these rules has been expressly disapproved by this Court. See Adams v. Lanier, 283 Ala. 321, 216 So.2d 713 (1968) (Per Coleman, J.).

It would seem almost aphorismic to add that, in exercising the power to set aside verdicts, trial courts

• “ * * * should be careful not to infringe the right of trial by jury, and should bear in mind, that it is their exclusive province to determine the credibility of witnesses, to weigh the testimony, and find the facts.”

In cases such as the instant case, where the evidence was in conflict and the ■ trial judge granted a new trial without specifying the grounds but one of the grounds asserted by the movant was that the verdict is contrary to the great preponderance of the evidence, it is presumed that it was granted for that reason. The order should be affirmed because, upon a review of the evidence, it cannot be said that the great weight of the evidence plainly and palpably supports the jury’s verdict. Authorities, supra.

Affirmed.

MERRILL, MADDOX, ALMON, SHORES and EMBRY, JJ., concur. HEFLIN, C. J., and FAULKNER and JONES, JJ., dissent.

1 . Minor, 1.