Jones v. Strange, 6 Div. 910

• Decision Date: 10 August 1972
• Docket Number: 6 Div. 930,6 Div. 910
• Citation: 265 So.2d 860,289 Ala. 76
• Parties: Allen L. JONES v. Curtis Eugene STRANGE. Curtis Eugene STRANGE v. GATEWAY SPORTING GOODS, INC. ,
• Court: Alabama Supreme Court

Page 860

265 So.2d 860

289 Ala. 76

Allen L. JONES v. Curtis Eugene STRANGE.

Curtis Eugene STRANGE v. GATEWAY SPORTING GOODS, INC.

6 Div. 910, 6 Div. 930.

Supreme Court of Alabama.

Aug. 10, 1972.

Cole & Wyatt, Birmingham, for Curtis E. Strange.

Marshall H. Fitzpatrick, Birmingham, for appellees Gateway Sporting Goods, Inc. and G.E.S. Stores, Inc., and for appellant Allen L. Jones.

BLOODWORTH, Justice.

This is an action for damages for malicious prosecution brought by plaintiff, Curtis Eugene Strange, against Allen L. Jones, Gateway Sporting Goods, Inc., Gateway, Inc., George Allen Jones, and G.E.S. Stores, Inc. George Allen Jones and Gateway, Inc., were never served. The case was submitted to the jury against defendants Allen L. Jones and Gateway Sporting Goods, Inc., with the general affirmative charge being given for defendant G.E.S. The jury returned a verdict in favor of plaintiff Strange against defendant Gateway Sporting Goods, Inc., for $30,000, and judgment was entered thereon in accordance with the verdict.

On March 24, 1971, defendant Gateway filed a motion for a new trial. The motion was submitted to the court on April 23, taken under advisement, and granted on May 24, 1971. On April 2, 1971, plaintiff Strange also filed a motion for a new trial. It was also heard on April 23, and taken under advisement by the court. On May 24, 1971, this motion was granted as to defendant Jones, but denied as to defendant G.E.S. The effect of granting these motions reinstated the case on the docket for trial against defendants Jones and Gateway.

Two appeals have been taken from these orders. They are consolidated in this court by agreement.

Appellant Jones, in 6 Div. 910, appeals from the trial court's order granting plaintiff Strange's motion for a new trial as to him.

Appellant Strange, in 6 Div. 930, appeals from the trial court's order granting a new trial to defendant Gateway, and refusing to grant a new trial as to defendant G.E.S.

The amended complaint sought damages against the three defendants for maliciously and without probable cause causing plaintiff to be arrested on a forgery charge in February 1968, which charge led to a prosecution for forgery, ultimately resulting in his acquittal.

The charge arose out of an incident in which it was alleged that plaintiff gave a forged check made out to the order of defendant G.E.S. in payment for a gun. Plaintiff's evidence tended to show that the gun was purchased from defendant Gateway Sporting Goods which operates under a leasing agreement with defendant G.E.S., whereby Gateway leases space within the main building of the G.E.S. store for use as a sporting goods shop. Defendant Allen L. Jones is the manager of Gateway Sporting Goods, Inc.

I.

The assignments of error asserted by appellant Jones on his appeal in 6 Div. 910 complain, in varying language, of the action of the trial court in granting appellee Strange's motion for a new trial.

Appellant Jones asserts that the trial court's ruling in granting Strange's motion for a new trial was '* * * erroneous and improper because the evidence adduced upon the trial was insufficient to warrant submission of the case to the jury and the trial court should have given the general affirmative charge duly requested by appellant.'

Appellant Jones also suggests that the granting of the new trial was erroneous because the evidence plainly and palpably supports the verdict in his favor.

The trial court granted the motion for new trial without specifying any grounds as the basis for its ruling.

When the trial court grants a motion for a new trial without indicating the grounds therefor (and one of the grounds is that the verdict is contrary to the evidence, as in the instant case) this court indulges the presumption that it was because the trial court concluded that the verdict was contrary to the great preponderance of the evidence, or that the verdict was unjust in the light of the evidence. Lee v. Moore, 282 Ala. 461, 213 So.2d 197 (1968); Wall v. Walls, 286 Ala. 317, 239 So.2d 749 (1970).

In such circumstances, this court will not reverse an order granting a new trial unless the grant weight of the evidence plainly and palpably supports the verdict, which means that we will not reverse in such case unless the evidence presented at trial plainly and palpably shows that the trial court was in error. State v. Oliver, 288 Ala. 32, 256 So.2d 866 (1972); Parker v. Hayes Lumber Co., 221 Ala. 73, 127 So. 504 (1930).

The evidence in this case is in dispute and, after reviewing the same, we cannot say that the great weight of the evidence plainly and palpably supports the verdict. Neither can we say the trial court's ruling in granting plaintiff a new trial as to Jones is plainly and palpably erroneous.

In view of another trial, we feel we ought to refrain from discussing the evidence in order to avoid any prejudice to a party. We will say we think the trial court correctly submitted the issues to the jury.

Thus, the ruling of the trial court granting the plaintiff's motion for a new trial as to defendant Jones is affirmed.

II.

The first assignment of error asserted by appellant Strange on his appeal, in 6 Div. 930, complains of the action of the trial court in granting a new trial to defendant Gateway Sporting Goods, Inc.

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