Opinion
4 Div. 374.
May 17, 1945.
John C. Walters, of Troy, for petitioner.
The Court of Appeals cannot reverse the trial court on denying a motion for new trial on the preponderance of the evidence; it must go further and find that the preponderance of the evidence against the verdict is so decided as clearly to convince the Court that it is wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Ballard Ballard Co. v. Jones, 246 Ala. 478, 21 So.2d 327. The Supreme Court will review the rulings of the Court of Appeals to ascertain if it has correctly determined legal conclusions from facts found by it to exist in the record, or has misapplied the law to such facts. Rochester-Hall Drug Co. v. Bowden, 218 Ala. 242, 118 So. 674; Hill Groc. Co. v. Ligon, 231 Ala. 141, 164 So. 219; Lancaster v. State, 214 Ala. 2, 106 So., 617; Fairbanks, Morse Co. v. Dees, 220 Ala. 41, 126 So. 624; Home Ins. Co. v. Pettit, 225 Ala. 487, 143 So. 839; Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829; Reichert Milling Co. v. George, 230 Ala. 3, 162 So. 393; Armstrong v. Blackwood, 227 Ala. 545, 151 So. 602; Cranford v. National Surety Corporation, 231 Ala. 636, 166 So. 721.
J. H. Wilkerson, of Troy, opposed.
It was not necessary that the Court of Appeals employ in its opinion the words of the statute and hold that the verdict was "wrong and unjust." If a verdict is against the great preponderance of the evidence it is also wrong and unjust. The opinion of the Court of Appeals is not subject to the objection here made. Code 1940, Tit. 7, § 276. The decision of the Court of Appeals is a decision upon facts, with no proposition of law involved, and consequently is not revisable by the Supreme Court under its constitutional revising power. Code, Tit. 13, § 66; Blackwood v. Maryland Casualty Co., 227 Ala. 343, 150 So. 180; Ex parte Louisville N. R. Co., 176 Ala. 631, 58 So. 315; Great A. P. Tea Co. v. Donaldson, 229 Ala. 276, 156 So. 865; Ex parte Stevenson, 177 Ala. 384, 58 So. 992; Ex parte Williams, 182 Ala. 34, 62 So. 63; Rochester-Hall Drug Co. v. Bowden, 218 Ala. 242, 118 So. 674.
The Court of Appeals has set out in its opinion the substance of the evidence shown in the record on appeal to that court, and held that the affirmative charge was not due the defendant on that basis, but that the verdict could not be supported against attack by a motion for a new trial. In the first instance that court passed on a legal question: that is, the legal effect of that evidence. That is not involved on the certiorari now before us, but it would be reviewable in that manner if it were involved in the petition. Rainey v. State, 245 Ala. 458, 17 So.2d 687. In holding that "the preponderance of the evidence weighs so heavily against the verdict that the motion for a new trial should have been granted," appellee contends that the Court of Appeals did not correctly apply the law, admitting that in weighing the evidence, the conclusion of that court is not subject to review though the evidence is set out. Rainey v. State, supra.
The argument of appellant is that the court erroneously stated the rule in that respect and therefore applied an erroneous rule; that a mere preponderance of the evidence is not sufficient to support the motion, but that it must "clearly convince the court that it is wrong and unjust," and that the statement of the court that "the evidence weighs so heavily against the verdict that the motion for a new trial should have been granted" is inaccurate and shows that the Court of Appeals did not require as great an amount of preponderance in the weight of the evidence to support their conclusion as the law requires. The case of Cobb v. Malone, 92 Ala. 630, 9 So. 738, is relied on.
The statute, section 276, Title 7, Code 1940, has a somewhat different language. It uses the words when "the verdict or decision is not sustained by the great preponderance of the evidence, or is contrary to law." That is also the way it was expressed in the Code of 1923, section 9518. The particular language used in the statute and in the opinions of the court need not be literally followed. This Court has not given controlling importance to terminology in that respect. Schaeffer v. Walker, 241 Ala. 530, 3 So.2d 405; Parker v. Hayes Lumber Co., 221 Ala. 73, 127 So. 504; Williams v. Birmingham Water Works Co., 230 Ala. 438, 162 So. 95, 96.
The statement of the Court of Appeals that "the evidence weighs so heavily against the verdict that the motion for a new trial should have been granted," does not undertake to say how heavily it should weigh to have that effect. If it shows that "the verdict failed to do justice," those cases say it should be set aside. If it weighs so heavily against the verdict that it should be granted, the expression means that it is so because it fails to do justice: otherwise it should not have been granted. The expression in the opinion of the Court of Appeals does not at all conflict with the statute nor established precedent, though it does not give as much detail as is sometimes stated in our opinions and in the statute. But that does not show that the court had an erroneous idea of the principle of law which had application.
We think the petition for certiorari should be denied.
Writ denied.
GARDNER, C. J., and THOMAS and STAKELY, JJ., concur.