Schultz v. Sussman

THE COURT.

This appeal is from a judgment entered on a verdict in favor of plaintiff in an action for damages for an alleged malicious assault by defendant upon plaintiff. The .verdict and judgment was for the sum of $11,000. Defendant moved for a new trial, which was denied on condition that plaintiff deduct from the verdict $6,000. Plaintiff filed his consent to such reduction.

Appellant contends that the court erred in denying his motion for a new trial, and also that the court erred in refusing to permit defendant to cross-examine plaintiff regarding other damage suits plaintiff might have pending against other persons for damages of a similar character.

In support of his motion for a new trial, appellant has brought up a bill of exceptions on said motion, in which it is alleged that in denying his motion for a judgment notwithstanding • the verdict the court used the following language : “If this case had been tried by the Court without a jury, it is altogether probable, if not certain, that the finding from the facts in evidence would have been in favor of the defendant. ’ ’ In

Green

v.

Soule,

145 Cal. 96, 103 [78 Pac. 337], cited by appellant, the court said: “Of course, the judge should give" due respect to the verdict of the jury, and may sometimes properly deny a new trial in cases where if submitted to him without a jury he might upon the evidence have made a different decision. He must be clearly satisfied that the verdict is wrong; otherwise he should let it stand.” It does not appear from the language used by the trial judge that he was clearly satisfied that the verdict was wrong.

It is the settled law that the granting or refusing of a new trial is conclusive and will not be disturbed in the absence of a clear and affirmative showing of a gross, manifest or unmistakable abuse of discretion, especially where the ground of the motion is insufficiency of the evidence to justify the verdict or decision, and there is a substantial conflict in

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the evidence. The granting or refusing of a new trial rests very largely within the discretion of the trial court; such discretion is very wide, and every presumption is indulged in support of the action of the court in passing upon the motion. (20 Cal. Jur. 27, and authorities cited.)