Opinion
No. 35770
Decided May 6, 1959.
New trial — Granting new trial on weight of evidence — Discretionary with trial court — Discretion not reviewable in absence of abuse thereof.
APPEAL from the Court of Appeals for Fayette County.
This is an action to recover damages for personal injuries alleged to have been inflicted by a malicious assault committed by defendant. There is conflicting evidence on the principal issues. The jury returned a verdict in favor of plaintiff, on which judgment was rendered. Defendant filed a motion to set aside the verdict and for a new trial on the grounds, inter alia, that the judgment is not sustained by sufficient evidence and is contrary to law. In passing on such motion, the trial court, after considering all the evidence in the light most favorable to plaintiff, found the damages awarded by the verdict to be so unreasonable, improbable and illogical as to be manifestly against the weight of the evidence as to the amount thereof, found them to be excessive, but not by reason of passion or prejudice, and ordered a remittitur. Upon plaintiff's refusal to accept the remittitur, the court sustained defendant's motion to set aside the verdict and for a new trial. Plaintiff appealed to the Court of Appeals, the sole error assigned being that the trial court abused its discretion in so ruling.
The Court of Appeals held that the trial court abused its discretion in ordering the remittitur and, upon plaintiff's refusal to accept it, in sustaining the motion for a new trial, reversed the judgment and remanded the cause with instructions to overrule defendant's motion, reinstate the verdict and enter judgment thereon in the amount awarded by the jury.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Herbert, Tuttle, Applegate Britt, Mr. C. Richard O'Neil and Mr. F. Scott Zimmerman, for appellee.
Messrs. Maddox Hire, Messrs. Vorys, Sater, Seymour Pease, Mr. John M. Rankin and Mr. William E. Bailey, for appellant.
The question presented here is whether the Court of Appeals erred in holding that the judgment of the trial court constituted an abuse of discretion.
The powers and duties of a trial court with reference to granting a new trial on the weight of the evidence are defined in Poske v. Mergl, ante, 70.
A motion for a new trial on the ground that the judgment is not sustained by sufficient evidence imposes upon the trial court a duty to review the evidence and pass upon the credibility of the witnesses and the evidence in general. The action of the court on such motion rests solely within its sound discretion and is not reviewable except on the question of an abuse of that discretion. To establish an abuse thereof there must be shown an unreasonable, arbitrary or unconscionable attitude on the part of the court. Since a careful examination of the record in the instant case fails to disclose any unreasonable, arbitrary or unconscionable attitude on the part of the trial court in sustaining the motion for a new trial, there was no abuse of discretion and the Court of Appeals was in error in its judgment of reversal.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed. Poske v. Mergl, supra.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS and HERBERT, JJ., concur.
BELL and PECK, JJ., not participating.