City of Mobile v. Murphree

• Decision Date: 23 June 1892
• Citation: City of Mobile v. Murphree, 96 Ala. 141, 11 So. 201 (Ala. 1892)
• Parties: CITY OF MOBILE v. MURPHREE.
• Court: Alabama Supreme Court

11 So. 201

96 Ala. 141

CITY OF MOBILE v. MURPHREE.

Supreme Court of Alabama

June 23, 1892

Appeal from circuit court, Mobile county; WILLIAM E. CLARKE, Judge.

Action by Mary J. Murphree against the city of Mobile for personal injuries resulting to her on account of a defective sidewalk. Judgment for plaintiff for $5,000. Defendant moved for a new trial on the following grounds: "(1) Because the verdict was contrary to the evidence; (2) because it was contrary to the law, both as given by the court orally and in writing at the instance of the defendant; (3) because under the law and the evidence the jury should have found for the defendant (4) because the jury considered the probable expense of attorney's fees and physician's charges in rendering its verdict; (5) because the damages assessed by the jury were excessive; (6) because the amount assessed by the jury was not warranted by the facts; (7) because under the law and the evidence the jury should have found the verdict for the defendant." From an order overruling the motion defendant appeals. Affirmed.

Pillans, Tarney & Hanaw and Watts & Son, for appellant.

Gregory L. & H. T. Smith and Thos. H. Smith, for appellee.

WALKER J.

The bill of exceptions does not show that any exception was reserved to the ruling of the court on the motion for a new trial. The order overruling the motion appears as a part of the record proper, and in that order it is recited that "defendant excepts." Whether an exception to such a ruling, which appears only in the judgment entry, is sufficient to present the ruling for review by this court, is a question not necessary to be decided in this case; for conceding that the exception is properly disclosed, yet the bill of exceptions fails to show that the court erred in overruling the motion. The bill of exceptions does not purport to set out all the evidence, or all the tendencies of the evidence, or, in the language of the act authorizing appeals in civil cases from decisions granting or refusing to grant motions for new trials, "the substance of the evidence in the case." Acts Ala. 1890-91, p. 779. It contains the testimony of several witnesses, and also states that a diagram of the scene of the casualty, and certain photographs thereof, were offered in evidence. For aught that appears there may have been other material evidence before the jury. When a motion for a new trial is made upon the ground that the verdict is contrary to the evidence, or is not supported by sufficient evidence, it is plain that the action of the trial court on the motion cannot be intelligently reviewed on appeal unless at least the substance of the evidence in the case is disclosed to the revising tribunal. In the absence of a showing of the premises upon which the decision of the trial court was predicated, it is impossible to determine whether its conclusion was right or wrong. Error will not be presumed, but must be affirmatively shown. The contrary not appearing, the presumption is to be indulged, in favor of the correctness of the ruling of the trial court, that the verdict was supported by sufficient evidence. This court cannot pass upon the question of the sufficiency of the evidence unless it is informed what the evidence was. No erroneous ruling of the court in the progress of the case was suggested in the motion as a ground for a new trial. A mere general assignment to the effect that the verdict was contrary to the law is insufficient, as it...