Woodroof v. Hall

TYSON, C. J. — The plaintiff by this action sought to recover of defendauts the statutory penalty, prescribed by section 4137 of the Code of 1896, of $5 per tree for 141 túpelo gum trees cut and destroyed, aggregating the sum of $705. The verdict of the jury was for that sum. On motion of defendants, assigning numerous grounds, the verdict and judgment was set aside and a new trial ordered; It is from that judgment this appeal is prosecuted. Among grounds assigned were these: “That, the verdict was contrary to the evidence; that the verdict was contrary to the weight of the evidence.” There was a conflict in the testimony as to the number- of' trees cut or destroyed. Of course, if the number cut or destroyed was less than that named in the complaint and for which the recovery was had, the verdict and' judgment thereon was properly set' aside. The rule applicable to this case is that this court will not reverse the judgment granting the new trial, unless the evidence is plainly and palpably in favor of the verdict. “This rule is founded partly upon the fact that the trial judge’s opportunity for pronouncing upon the weight and- convincing power of the testimony is better than ours.” He heard the testimony of the witnesses, and had this oppartunity of observing [418] their demeanor, etc. —Smith v. Tombigbee & N. Ry. Co., 141 Ala. 332, 37 South. 389; Karter v. Peck, 121 Ala. 636, 25 South. 1012. After an examination of the testimony, applying the rule stated, we are unwilling to affirm that the court erred in ordering the new trial. Affirmed. Dowdell, Anderson, and McClellan. JJ., concur.