Bullard v. Williams
| Decision Date | 22 June 1961 |
| Docket Number | 8 Div. 27 |
| Parties | Carl BULLARD, pro aml. v. Troy WILLIAMS. |
| Court | Alabama Supreme Court |
Clark E. Johnson, Jr., Albertville, for petitioner.
Lusk & Lusk, Guntersville, opposed.
This is a review, by certiorari, of a decision of the Court of Appeals wherein that court reversed a judgment of the circuit court which granted defendant's motion for a new trial in an action at law.
In an action for work and labor done by plaintiff for defendant under an agreement, and for money loaned by plaintiff to defendant, judgment was rendered for the plaintiff on the verdict of a jury. Defendant filed a motion for new trial which was granted. Plaintiff then appealed to the Court of Appeals. That court reversed the judgment granting a new trial, and reinstated the judgment for the plaintiff. Defendant asserts that the decision of the Court of Appeals is erroneous.
From the opinion of the Court of Appeals, we understand that the tendencies of plaintiff's evidence are as follows: The defendant employed plaintiff to work in defendant's garage for a wage of $200 per month. Plaintiff worked for defendant for approximately six weeks. Defendant paid plaintiff only $10 as wages. On a trip to Chicago, plaintiff loaned defendant $300 and defendant has not repaid the loan.
Testimony for defendant tended to show that he never had any agreement with plaintiff about working at the garage; that defendant entered into a partnership with plaintiff's father; that the father agreed to furnish the garage building, clean used cars, and help to sell them; and that because the father could not render personal service to the partnership, he sent his son, the plaintiff, to perform the father's duties to the partnership. Defendant denied that he received any money from plaintiff and defendant testified that he did not owe plaintiff any money.
Plaintiff's evidence further tended to show that defendant did not enter into a partnership with plaintiff's father, that defendant rented the garage building from plaintiff's father and borrowed money from plaintiff's father. After several weeks of operation, defendant quit the used car business to accept a job on the Boaz police force. There is other evidence concerning the operation and liquidation of defendant's used car business. It appears that defendant has filed a suit in equity against plaintiff's father.
The trial court heard testimony ore tenus on the motion for new trial. Looking to the record of the judgment entry, as we are permitted to do on this petition, Southern Building & Loan Ass'n v. Holmes, 227 Ala. 1, 149 So. 861, we find that the judgment granting the motion for new trial recites in pertinent part as follows:
'On this the 10th day of October, 1958, the foregoing motion being heard this day and understood by the Court the Court is of the opinion justice would be best served by awarding a new trial in this case under all the circumstances.
'It is therefore considered, ordered and adjudged by the Court that the motion for a new trial be and the same is granted and the case restored to the docket for trial at the next term of Court at Albertville.'
The Court of Appeals concluded that the motion was not granted on the ground of insufficiency of the evidence; that, considered as an original proposition, the verdict was not so clearly against the weight and preponderance of the evidence as to warrant a new trial on that ground; that the evidence as to the alleged misconduct of a juror did not show such misconduct as to justify a new trial on that ground; and that the action of the trial court in admitting certain testimony by the witness, Rice, did not constitute prejudicial error. The Court of Appeals found no merit in the remaining grounds of the motion for new trial and did not discuss other grounds. Being of opinion that the motion for new trial was without merit, the Court of Appeals reversed the judgment granting the motion and rendered judgment for the plaintiff.
We are of opinion that the Court of Appeals erred in concluding that the motion for new trial was not granted on the ground that the verdict was contrary to the great preponderance of the evidence. The judgment entry recites that 'the Court is of the opinion justice would be best served by awarding a new trial in this case under all the circumstances.' The judgment makes no other reference to the court's reason for granting a new trial or the grounds of the motion which the court considered well taken. We do not think it can be said that the judgment negated action upon the ground that the verdict was contrary to the great preponderance of the evidence.
In Cook v. Sheffield Co. 206 Ala. 625, 91 So. 473, 475, this court in reviewing the granting of a new trial decided that the judgment 'negatived action upon' the ground that the verdict was contrary to the great preponderance of the evidence, and refused to indulge the presumption in favor of the action of the trial court which prevails when the judgment granting a new trial is referred to that ground. Reference to the record in Cook v. Sheffield Co., supra, discloses that the judgment granting a new trial in that case recited in pertinent part as follows:
Supreme Court Record, Vol. 2736.
The judgment there clearly was placed on the ground of error in overruling the demurrer to Count 16, and rebutted any presumption that the judgment was placed on any other ground. Such is not the case here. The judgment of the trial court in the case at bar is placed on 'all the circumstances.' Instead of placing the judgment on any single ground of the motion, that recital would seem to base the judgment on all the grounds of the motion, and grounds 1 through 5 presented the question of the weight of the evidence. We are of opinion, therefore, that review of the judgment granting a new trial was due to be attended with the presumption which prevails when the granting of a new trial is based on the ground that the verdict was contrary to the great weight of the evidence.
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