To recover for fraud under Alabama law, which governs the substantive aspects of this diversity case, the plaintiff must establish that Equitable represented that it would calculate the dividend with respect to the Final Policy Period in the same manner as it had in the past, and that such promise was made with the present intent not to perform. See Williams v. United Insurance Company of America, 634 F.2d 813, 815 (5th Cir. Unit B 1981). After careful review of the record, we believe that, at trial, Durbin presented sufficient evidence of actionable fraud by Equitable to satisfy each of the requisite elements for a fraud claim under Alabama law.
. . ." Boeing Co. v. Shipman. . . .'" Williams v. United Insurance Co. of America, 634 F.2d 813, 815 (5th Cir. Unit B 1981). Likewise, as to the denial of the motion for a new trial, on appeal "we are not reviewing `sufficiency' in its technical sense. . . . we are reviewing whether the district judge has abused his judicial discretion in denying a new trial or whether as a matter of law the denial of a new trial was erroneous because there was an `absolute absence of evidence to support the jury's verdict.'"
We find in the affirmative. See Terry v. Raymond Int'l, Inc., 658 F.2d 398, 404 (5th Cir. 1981); Williams v. Insurance Co. of North America, 634 F.2d 813, 815 (5th Cir. 1981); Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) ( en banc).FRCP 60(b)(6)
Since the sufficiency of the evidence to support a verdict is a question of law, the standard of review on appeal is the same as that applied by the trial court in making its initial ruling. Williams v. United Insurance Co. of America, 634 F.2d 813, 815 (5th Cir. 1981); United States v. Bucon Construction Co., 430 F.2d 420, 423 (5th Cir. 1970). Boeing Co. v. Shipman sets forth the criteria for evaluating such motions.
No matter how persuasive we might find Manitowoc's arguments, this court is not at liberty to set the jury's verdict aside if that verdict could have been reached by reasonable men in the exercise of impartial judgment. See Williams v. Insurance Co. of North America, 634 F.2d 813, 815 (5th Cir. 1981); Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc). The record demonstrates that the jury's verdict cannot be disturbed.
So viewed, if there is substantial evidence supporting their claims a directed verdict should have been denied. Williams v. United Insurance Company of America, 634 F.2d 813, 815 (5th Cir. 1981). Our task, therefore, is to examine the record to determine whether, viewed as required, the evidence supporting the plaintiffs' claims is of such quality and weight that reasonable and fair minded jurors in exercise of impartial judgment might reach different conclusions.
This Court, and the trial court at the time of the original motion for directed verdict, must examine all the evidence "in the light and with all reasonable inferences most favorable to the party opposed to the motion." Williams v. United Insurance Co. of America, 634 F.2d 813, 815 (5th Cir. 1981). This Court on review does not reweigh the evidence.
`[I]f there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.'" Williams v. United Ins. Co. of America, 634 F.2d 813, 815 (5th Cir. 1981), quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc). A trial court may, in the exercise of its sound discretion, set aside a verdict and grant a new trial if, in its opinion, "`the verdict is against the clear weight of the evidence * * * or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.'"
`[I]f there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury.'" Williams v. United Ins. Co. of America, 634 F.2d 813, 815 (5th Cir. 1981), quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). A trial court may, in the exercise of its sound discretion, set aside a verdict and grant a new trial if, in its opinion, "`the verdict is against the clear weight of the evidence * * * or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.'"
The standard on review for consideration of a directed verdict is the same test that governs a district court's consideration of the motion — whether viewing the evidence with all reasonable inferences most favorable to the party opposing the motion, there is substantial evidence opposed to the motion. Williams v. United Ins. Co. of America, 634 F.2d 813 (5th Cir. 1981). Unless the facts and inferences are so strong and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict, the motion should be denied.