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

Carl KALASH and Olga Kalash, his wife, Paul H. Hardy and Shirley James Hardy, his wife, and Willis E. Huson, Plaintiffs and Appellants, v. CHARLES L. HARNEY, Inc., a corporation, Charles L. Harney et al., Defendants and Respondents.

No. 17356.

Decided: March 19, 1958

Raymond H. Levy, Courtney L. Moore, Marcel E. Cerf, Robinson & Leland, San Francisco, for appellants. Cooley, Crowley & Gaither, San Francisco, for respondents.

After a jury verdict and judgment thereon, in which plaintiffs recovered damages for removing loam from their property, the trial judge granted a new trial on the grounds of ‘insufficiency of the evidence to sustain or justify the verdict in whole and in each part thereof, errors in law, and excessive damages actual and exemplary.’

This is an appeal by the plaintiffs from such order granting a new trial.

It is well established that the granting or denial of a new trial on the grounds of insufficiency of the evidence is almost completely within the discretion of the trial court, and that the only question for an appellate court on an appeal from such order is whether the trial court abused its discretionary powers. Hawk v. City of Newport Beach, 46 Cal.2d 213, 293 P.2d 48. Unless it can be said, as a matter of law, that there is no substantial evidence to support a contrary judgment, this court cannot reverse the trial court's determination on such a motion. Richardson v. Ham, 44 Cal.2d 772, 285 P.2d 269.

From the record before us, there assuredly appears to be a conflict in the evidence as to the damages sustained by the plaintiffs by reason of the defendant's acts. Under such a state of the record, the trial court could well have discredited the testimony presented by plaintiffs as to the amount of the damages, both actual and exemplary. An order granting a new trial for excessive damages will not be disturbed, if there is a reasonable or fairly debatable justification therefor, and from the record before us it appears that such justification appears here. The order appealed from is affirmed.

McMurray, Justice pro tem.

PETERS, P. J., and FRED B. WOOD, J., concur.

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