SC DEPT. OF HIGHWAYS & PUBLIC TRANSPORTATION v. Mooneyham

269 S.E.2d 329, 275 S.C. 205, 1980 S.C. LEXIS 435

• Court: Supreme Court of South Carolina
• Decided: July 28, 1980
• Docket: 21275
• Status: Published

Opinions

Gregory, Justice:

The Department of Highways and Public Transportation appeals from orders granting the landowners new trials absolute in each of these three land condemnation cases. Since the issue is the same the appeals have been consolidated. Following each verdict counsel for the landowner moved for and was granted a new trial absolute on the ground the verdict was contrary to the fair preponderance of the evidence. We affirm.

The axiom that an order granting a new trial upon the facts is not appealable

. . has been soundly applied to limit review in these cases to a determination of whether there was an abuse of discretion amounting to an error of law.”

South Carolina State Highway Department v. Clarkson, 267 S. C. 121, 226 S. E. (2d) 696, 698 (1976).

What is an abuse of discretion in these cases amounting to an error of law? Such an abuse has been found in our prior decisions where the order granting a new trial is without evidentiary support, see, e. g., Watford v. South Carolina State Highway Department, 269 S. C. 130, 236 S. E. (2d) 558 (1977), or founded upon a fundamental legal error. See, e. g., South Carolina State Highway Department v. Terrain, Inc., 267 S. C. 186, 227 S. E. (2d) 184 (1976).

An order granting a new trial upon the facts was, heretofore, not disturbed if the evidence and testimony are in conflict so that the trial judge’s ruling has support. Dent v. Redd, 270 S. C. 585, 243 S. E. (2d) 460 (1978); Clarkson, supra, and cases cited and annotated therein; see also 4 C. J. S., Appeal and Error, § 123 at page 390.

When the question is, thus, the existence or absence of supportive evidence such an order is subject to our review for a consideration of that question of law only. Mims v. Coleman, 248 S. C. 235, 149 S. E. (2d) 623 (1966); Clarkson, supra. This is what we have meant in saying an order granting a new trial upon the facts is not appealable: our inquiry is clearly delimited.

The majority in Clarkson affirmed an order granting a new trial since the finding of the lower court had evidentiary support. Similarly, a majority joined in reversing an order granting a new trial where the lower court’s decision was without evidentiary support. See Watford, supra. And we have unanimously affirmed the granting of a new trial where there is conflicting evidence on the issues of fact. See Dent v. Redd, supra.

We believe the above principles are harmonious, and have been uniformly applied to the end of consistency in result. As noted by Chief Justice Lewis in Clarkson, supra:

“Our prior decisions uniformly hold that the granting or denial of a new trial upon the facts rests within the discretion of the trial judge. Most of our decisions say that such an order is not appealable; some that it is subject to review to determine whether the discretion has been abused. However, regardless of what might appear to he inconsistencies in the statement of the principles governing appellate review of the exercise of the discretion of the trial judge in such matters, the principle consistently applied in all of the cases has been that the decision by the trial judge will not be disturbed unless his finding is wholly unsupported by the evidence, or the conclusion reached has been controlled by error of law.” (emphasis added) 226 S. E. (2d) at 697.

We have no trouble finding evidentiary support from the conflicting testimony in each of the three cases here consolidated. A dissertation of the evidence would serve no useful purpose. Accordingly, we affirm the orders granting new trials under the authority of our prior cases.

Affirmed.

Lewis, C. J., and Harwell, J., concur. Littlejohn and Ness, JJ., dissent.