Teague v. Bass

• Decision Date: 27 November 1901
• Citation: 31 So. 4,131 Ala. 422
• Parties: TEAGUE ET AL. v. BASS.
• Court: Alabama Supreme Court

31 So. 4

131 Ala. 422

TEAGUE ET AL. v. BASS.

Supreme Court of Alabama

November 27, 1901

Appeal from circuit court, Chambers county; N. D. Denson, Judge.

Action by W. Q. Bass against Teague, Barnett & Co. Judgment for plaintiff, and defendants appeal. Reversed.

E. M Oliver and Horace Stringfellow, for appellants.

Barnes & Duke, for appellee.

DOWDELL J.

The appellee, Bass, instituted suit in trespass against appellants for the wrongful taking of plaintiff's goods which were levied upon under an attachment sued out by appellants against the firm of Satterwhite & Trammell, who were their debtors. The appellee claimed to have purchased the stock of goods levied upon for value from Satterwhite &amp Trammell. Verdict and judgment were rendered in favor of said Bass against appellants, and thereafter a motion was made by appellants for a new trial, principally upon the grounds that the verdict was contrary to the evidence, and that the evidence was insufficient to support the verdict. This motion was overruled by the court, and hence this appeal. Although there are several assignments of error, the only one really insisted on in argument by counsel for appellant is that which relates to the ruling of the court on the motion for a new trial.

A rule for the guidance of the court in such cases was laid down in Cobb v. Malone, 92 Ala. 630, 9 So. 740, wherein it is stated that "the decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to convince the court that it is wrong and unjust." It is also stated that this rule is not inflexible, but subject to exceptions and qualifications dependent upon peculiar circumstances. This qualification, however, can mean nothing more nor less than that the court will not reverse a refusal to grant a motion for a new trial upon the grounds above stated, unless it is clearly of the opinion that the verdict of the jury is wrong and unjust. As was said in the case of Railway Co. v. Chambliss, 97 Ala. 180, 11 So. 900: "We are of opinion that the verdict of the jury was contrary to the evidence, and that a new trial should have been granted. It is clear that the plaintiff relied for a recovery exclusively upon the theory that by reason of the defect in the switch, when the wheels supporting the engine struck the rails of the switch, the lever of the switch, which he was at the time trying to press down, was made to fly up with so much force and suddenness that it threw him in front of the engine. The testimony of the witness Sharp, who was examined as an expert, tended to show that this was possible, but the testimony in rebuttal on this point so greatly predominates, and is of such a character, that we are clearly of the opinion that the case is fully within the rule declared in Cobb v. Malone,"--quoting the rule laid down in that case. Again, in the case of Sheppard v. Dowling, 103 Ala. 566, 15 So. 848, this court, after stating the other phases of the testimony upon which the jury might have found for the plaintiff, said: "We have carefully considered the testimony with reference to each of these propositions, and, without going into details, reached the conclusion that a new trial ought to have been granted." Again, in the case of Railway Co. v. Clay, 108 Ala. 236, 19 So. 309, the plaintiff's witness testified that the train had stopped to discharge passengers, and that while they, with deceased, were attempting to board it, the train started with a jerk, throwing deceased off. The defendant's witness testified that the train was in motion when the deceased tried to board it. This court said, notwithstanding this conflict in the testimony: "The preponderance of the evidence before us was so greatly in favor of the defendant as, in our judgment, presented a case for a new trial." Again, in the case of Davis v. Miller, 109 Ala. 600, 19 So. 704, this court said: "After according all reasonable presumptions of the correctness of the verdict and judgment below, it is our conviction that the preponderance of the evidence is so decided in favor of the foregoing conclusions of fact, and therefore against the verdict, as to leave really no substantial doubt that the verdict is wrong and unjust, and to impose the duty upon us of reversing the judgment and setting aside the verdict."

The evidence shows that said Satterwhite & Trammell were merchants doing business at Five Points, in Chambers county. The appellee was a clerk in their store, under a contract with them for a term of one year, at $50 a month for the fall and winter months, and $25 per month for the spring and summer, or a total of $450 a year. This contract was entered into in September. The sale of the stock of goods in question by Satterwhite & Trammell to appellee, their clerk, was made a little over a month after he (Bass)...