Carnes v. Minehan ( 1916 )

Opinion by

Kephart, J.,

We cannot agree that Hazen’s testimony was inadmissible. * For the purpose offered and under the limitations imposed by the court, we feel that sufficient was developed to submit it to the jury. His testimony was to the effect that the lease was signed for the defendant. The lease is exhibited and testimony is produced to show that the defendant recognized, acted under and knew about the lease. If the defendant felt that an agency had not been established after the plaintiffs’ case closed, she should have moved to have this testimony stricken from the record. This was not done, and she must have considered this branch of the case as being proven, as testimony was offered to contradict it.. The granting or refusing a new trial is such a matter of discretion with the court below that this court will not reverse except upon a clear abuse being shown. While the testimony does seem to be evenly balanced, the court had the benefit of the appearance of the witnesses before him, and no doubt took into consideration the relationship of the parties as well as Hazen’s testimony. We do not care to say that the court abused its discretion in refusing a new trial. As a trial judge our views on the evidence might not have agreed with the learned judge who determined the question of retrial, yet this is not sufficient upon which to base a finding of abuse, which is something more than a difference of opinion. The charge of the court was fair. Counsel should have called the court’s attention to any incorrect statement of the evidence, and as we view it the court’s statement can scarcely be considered as inaccurate. The record does not disclose any substantial errors of law, and we doubt very much whether a retrial would produce any different results.

The judgment is affirmed.