Southern Railway Co. v. Carolina-Portland Cement Co. , 171 Ala. 427 ( 1911 )

McCLELLAN, J.

This action is for the value of a car of cement consigned by the appellee to the Southern Improvement Company, at Talladega, Ala., and delivered by the earner, appellant, to W. S. White & Co. at that point. The defense below was that one Timmons, as appellee’s authorized representative, diverted the delivery of the consignment from the consignee to W. S'. White & Co., another customer of the appellee. The verdict was in favor of the appellee. The motion for new trial was overruled. This action is the basis of the only errors assigned.

Taking full account of the rule announced in Cobb v. Malone, 92 Ala. 630, 9 South. 738, firmly accepted for the guidance of this court in reviewing the action of trial courts in overruling motions for new trial, we feel constrained to hold in this case, after a careful consideration of the whole evidence presented in the bill of exceptions, that the new trial should have been granted, upon the ground that the weight of the evidence against the verdict is so great as to convince this court that “the substantial ends of justice require the examination of the facts by another jury.” A discussion of the evidence is purposely avoided, in view of the new trial to be had.

T'he motion for new trial is granted. The canse is remanded.

Reversed, rendered, and remanded.

D'owdell, G. J., and Simpson and Mayfield, JJ., concur.