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District Court of Appeal, First District, Division 1, California.


Civ. 10398.

Decided: July 14, 1937

Fred S. Howell and La Fayette Carpenter, both of Petaluma, for appellant. Henry E. Greer, of San Rafael, for respondent American Surety Co. of New York. Harold Jos. Haley, of San Rafael, and A. E. Bagshaw, of San Francisco, for respondent Fred De Lucchi.

An appeal from an order granting a new trial.

The action was one for damages for alleged assault and battery, and the trial resulted in a verdict for the plaintiff. A new trial was granted on the ground of the insufficiency of the evidence to sustain the verdict. Plaintiff contends that the trial court abused its discretion by granting the motion.

The plaintiff was arrested by the defendant, who was a constable of Novato township in Marin county. The latter alleged and testified that the plaintiff was at the time drunk and disorderly; that the arrest was made without malice; and that no greater force was used than was reasonably necessary in the circumstances. It appears that both received injuries, the evidence being conflicting as to the extent of those suffered by the plaintiff.

An examination of the record, including the evidence, shows a conflict in the testimony as to the facts, there being sufficient, if believed, to have sustained a verdict for either party. Where there is such a conflict, an order granting a new trial for insufficiency of the evidence will not be disturbed. Rosenberg v. Moore & Co., 194 Cal. 392, 229 P. 34; Erickson v. Grady, 119 Cal.App. 596, 6 P.(2d) 1002.

Plaintiff suggests bias and prejudice on the part of the trial court as indicating that the order was an abuse of discretion.

Section 170 of the Code of Civil Procedure (as amended by St.1933, p. 1828) is applicable to the hearing of motions for a new trial. Keating v. Keating, 169 Cal. 754, 147 P. 974. No objection was made in the court below, and nothing appears from the proceedings on the trial or otherwise which would in our opinion warrant the conclusion sought to be drawn by the plaintiff.

The order is affirmed.


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