Opinion
No. 34492.
March 11, 1952. Rehearing Denied June 24, 1952.
(Syllabus.)
1. APPEAL AND ERROR — NEW TRIAL — Broad discretion of trial court in granting or denying new trial. The trial court is vested with broad discretion in granting or denying a new trial and its action in granting a new trial will not be disturbed on appeal unless it clearly appears that the court erred in some pure, simple and unmixed question of law, or has acted arbitrarily or capriciously.
2. SAME — Record found to sustain order granting new trial. Record examined, and found to sustain the order granting a new trial.
Appeal from Court of Common Pleas, Tulsa County; H.E. Chambers, Judge.
Action by J.T. Chamblee against C.H. Thompson. From order of trial court sustaining motion for a new trial, defendant appeals. Affirmed.
J.B. Underwood, Tulsa, for plaintiff in error.
John R. Woodard, Tulsa, for defendant in error.
Action by J.T. Chamblee against C.H. Thompson to recover a real estate broker's commission.
Upon the trial of the issues, the jury returned a verdict for the defendant. In the motion for a new trial, the plaintiff urged, among other things, that the court erred in giving instruction No. 6. The court sustained the motion for new trial and recited in his order "that plaintiff should be granted a new trial in this cause particularly on account of certain instructions, to wit, Nos. 3 and 6, which are conflicting".
Upon examination, these instructions are found to be clearly repugnant to each other, and conflicting and confusing to the jury. The court, therefore, correctly granted a new trial, because of them. El Kouri v. Toma, 200 Okla. 354, 194 P.2d 872.
The trial court is vested with broad discretion in granting or denying a new trial, and its action in granting a new trial will not be disturbed on appeal unless it clearly appears that the court erred in some pure, simple and unmixed question of law or has acted arbitrarily or capriciously.
The order of the court in sustaining said motion for new trial is therefore affirmed.
This court acknowledges the services of Attorneys John F. Butler, Mart Brown, and Merton Bulla, who as Special Masters aided in the preparation of this opinion. These attorneys were recommended by the Oklahoma Bar Association, approved by the Judicial Council, and appointed by the court.
HALLEY, V.C.J., and WELCH, CORN, GIBSON, DAVISON, JOHNSON, O'NEAL, and BINGAMAN, JJ., concur.