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DuBRUTZ et al. v. JESSUP

         If the Court below was of opinion that the evidence preponderated against the verdict, it was its duty to grant a new trial. (Mason v. Austin, 46 Cal. 385; Mariani v. Dougherty, Id. 26; Potter v. Seale, 5 Id. 410.) The Appellate Court will not disturb an order granting or refusing a new trial, where there is a substantial conflict in the testimony.

         OPINION          Department No. 1, by the Court (from the Bench):

         We are of opinion that, so far as the party, against whom the verdict has gone, depends upon the circumstance that damages have been allowed in too great or too small a sum, he may rely upon the ground that the verdict is not sustained by the evidence. Even when--in the case of excessive damages--he is prepared to show that the excess indicates passion or prejudice, in such case, he may rely upon either one of these two grounds: that the evidence does not sustain the verdict, or that the verdict is the result of passion or prejudice. Further, we are of opinion that this bill of exceptions contains a sufficient specification of the particulars, in which the evidence is claimed to be insufficient. And we add--there being a substantial conflict in the evidence upon the main issues submitted to the jury--we will pursue in this case the established rule, which is, where such conflict appears, to sustain the action of the Court below.

         The Court having granted a new trial, the order is affirmed.

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DuBrutz v. Jessup
(Jan 1, 1880)