Opinion
1 Div. 633.
March 22, 1956.
Appeal from the Circuit Court, Mobile County, Claude A. Grayson, J.
Lyons, Pipes Cook, and Sam W. Pipes, III, Mobile, for appellant.
Jos. C. Sullivan and Edmund R. Cannon, Jr., Mobile, for appellee.
This appeal is from a judgment of the Circuit Court of Mobile County setting aside the verdict of the jury and judgment rendered thereon and granting a new trial to the appellee. The sole matter assigned as error is the action of the trial court in granting the motion for a new trial.
Appellee, plaintiff below, sued on a lightning and windstorm insurance policy claiming that the property insured thereby had been damaged to the extent of $1,500. The appellant defended on the ground that the loss suffered by the appellee was not caused by lightning or windstorm but that the roof of the insured building was improperly constructed and that an accumulation of water on the roof caused it to collapse.
After a verdict and judgment for the appellant, the appellee filed a motion for a new trial assigning as grounds therefor, among others, that the verdict was contrary to the evidence, that the verdict was contrary to the great preponderance of the evidence, and that the verdict was contrary to the undisputed evidence. The lower court granted the motion but did not base its ruling on any specific ground. Thus, if any good ground was presented, the action of the lower court in granting the motion for a new trial is due to be affirmed. Morgan County v. Hart, 260 Ala. 418, 71 So.2d 278; Gordon v. Gleason, 262 Ala. 421, 79 So.2d 54.
It is a firmly established rule of law in this State that where one of the grounds of a motion for a new trial is that the verdict is contrary to the evidence, the action of the trial court in granting the motion, without specifying the ground upon which it was granted, will not be disturbed on appeal unless the evidence plainly and palpably supports the verdict set aside. Morgan County v. Hart, supra; Birmingham Electric Co. v. Greene, 252 Ala. 40, 39 So.2d 398.
Decisions granting new trials will not be reversed, unless the evidence plainly and palpably supports the verdict; and the same presumption must be indulged in favor of granting the motion that would be indulged had the motion been overruled. Morgan County v. Hart, supra, and cases therein cited.
A careful study of the record reveals that there was evidence to sustain the original judgment, but we find ourselves unable to say that the evidence "plainly and palpably" supported such verdict and judgment.
It follows that the judgment of the lower court should be and is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur.