Daniels v. McGuire

WASTE, P. J.

Plaintiff brought this action to recover damages from the defendant on account of alleged malicious prosecution. He averred that he was wrongfully accused by the defendant of opening, secreting, and embezzling letters transmitted through the United States mail, in violation of certain federal statutes. Two trials with jury have been had. The first resulted in a disagreement. On the second

[189]

trial, the present ease, the jury returned a verdict for the defendant. Plaintiff made a motion for a new trial, which was granted, and from which order the defendant appeals.

The motion for a new trial was made on three grounds: Insufficiency of the evidence to justify the verdict; that the verdict was against law, and errors in law occurring at the trial and excepted to by plaintiff. While counsel for appellant asserts that the first of these grounds was the only one urged and considered at the hearing of the motion, the order granting the motion was general in its terms. It must, therefore, be affirmed if it could properly have been granted on any one of the grounds assigned.

Alleged errors on the part of the trial court in giving instructions prejudicial to the appellant, and its refusal to give others requested by appellant, were cured by the verdict in appellant’s favor, as he admits, and do not avail on this appeal.

[1]

Aside from appellant’s assertion that the insufficiency of the evidence to justify the verdict was the only matter urged in support of the motion for a new trial, we may presume it was granted on that ground in the absence of any other cause appearing in the record.

(Gordon

v.

Roberts,

162 Cal. 506, 508, [123 Pac. 288].)

[2]

The courts have frequently commented upon the wide extent of discretion of the trial court in granting or denying a new trial on the ground of the insufficiency or the sufficiency of the evidence. Its action in this regard is conclusive in the appellate court, unless there has been an abuse of discretion.