Opinion
6 Div. 679.
January 17, 1918.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Robert J. Wheeler and Samuel D. Weakley, both of Birmingham, for appellant. A. G. E. D. Smith, of Birmingham, for appellee.
The only question presented by the assignments of error and argued by counsel for appellant relates to the action of the court below in overruling the motion for a new trial; the insistence being that the verdict of the jury was contrary to the overwhelming weight of the evidence to such an extent as to involve the conviction that it was wrong and unjust, citing, among other of our cases, Twin Tree Lbr. Co. v. Day, 181 Ala. 565, 61 So. 914; Gassenheimer v. Western Ry., 175 Ala. 319, 57 So. 718, 40 L.R.A. (N.S.) 998; Southern Ry. v. Grady, 192 Ala. 515, 68 So. 346.
The record contains the oral charge of the court, as well as the charges given and refused to the respective parties. That the law was correctly and fairly charged by the court to the jury is not questioned; nor is it questioned that the verdict was fully justified if the jury believed the evidence offered by the defendant. The questions of fact were therefore squarely presented for the jury's determination.
The evidence has been very carefully examined. We do not think it necessary to enter into a discussion of the same, but, after a careful review of the testimony, we are persuaded, under the familiar rule announced in Cobb v. Malone, 92 Ala. 630, 9 So. 738, that a reversal should not be rested upon this action of the court. The trial court had the witnesses before him, and the advantage of observing their demeanor on the stand. We have heretofore ruled that under such circumstances the presumption is in favor of the correctness of the ruling of the court below, and that such ruling has not been changed by recent legislative enactment. Acts 1915, p. 722; Hatfield v. Riley, 199 Ala. 388, 74 So. 380; Price v. Price, 199 Ala. 433, 74 So. 381.
The judgment of the court below will therefore be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.