Armstrong v. Svoboda

CONLEY, J.

*

The plaintiff sued the defendant doctor for malpractice, claiming permanent injuries by reason of negligence in the treatment of his heart condition. The jury’s verdict was for the defendant. But plaintiff’s motion for a new trial was granted on the ground of the insufficiency of the evidence to justify the verdict and the defendant appealed.

Under our system, the final check on a jury’s findings of fact, when there is a substantial conflict of evidence, is committed to the trial judge. In a homely phrase, which is accurate in connotation, it is often said that it is his duty on motion for a new trial to act as a thirteenth juror.

(Smith

v.

City of Long Beach,

150 Cal.App.2d 720, 723 [310 P.2d 470];

Grover

v.

Sharp & Fellows etc. Co.,

66 Cal.App.2d 736, 737-738 [153 P.2d 83].) Once a case has passed this stage, there is no recourse to a losing party for a factual reassessment of contradictory proof; for an appellate court cannot reweigh the evidence received at the trial and is powerless to reverse a judgment if there was a substantial conflict of testimony. It is for this reason that it is not only the right, but the duty, of a trial judge to give close attention to the evidence and to grant a new trial if he concludes that the jury was wrong factually.

(Green

v.

Soule,

145 Cal. 96, 102-103 [78 P. 337]; 36 Cal.Jur. 2d, New Trial, § 5, p. 132, New Trial, § 96, pp. 278-281.) It is also the reason why appellate courts are extremely loath to interfere with a decision of the court below that a new trial should be granted on the facts. (36 Cal.Jur.2d, New Trial, § 97, pp. 281-283.)

On this appeal, the defendant doctor contends that there was a total absence of evidence which could have supported a verdict for the plaintiff, and that, therefore, there was no basis for granting a new trial. In considering the record, this court can do no more than decide whether there was substantial evidence, which, if believed and adopted by the jury, would have supported a finding for the plaintiff, and