RUBEN D. OSWALD, APPELLANT,
v.
WILLIAM M. CRUZ, APPELLEE
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The court held that the trial court did not clearly abuse its discretion in granting a new trial, despite the appellate court's inability to definitively determine if the decision was correct.
Plaintiff Oswald was injured as a guest passenger in defendant Cruz's car. After a first trial resulted in a verdict for Oswald, the trial court grant…
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PER CURIAM.
Oswald, as a guest passenger of Cruz in his automobile while the latter was driving, was injured. On the first trial for negligence, Oswald received a favorable verdict. A new trial was granted on the ground that the verdict went against the weight of evidence and upon the ground of misconduct of Oswald’s counsel during the trial.
At a second trial, the verdict went in favor of Cruz. Now Oswald appeals alleging that the granting of the new trial which took away his verdict was error. We cannot agree with appellee that no right of appeal lies. 6 Moore’s Federal Practice 3896. However, our scope of inquiry is limited to seeing if there was a clear abuse of discretion. NG Sing v. United States, 9 Cir., 8 F. 2d 919; Travelers Fire Insurance Co. v. Ranney-Davis Mercantile Co., 10 Cir., 173 F. 2d 844.
After reviewing the record, we can get no further than to be able to say that maybe the trial court was right and maybe it was not. Thus, we arrive short of finding a clear abuse of discretion. Particularly in the field of conduct of counsel we only have the written record. We shall never know in this case the tone of voice and the grimaces, if any, that accompanied Oswald’s counsel’s persistence in attempting to override rulings of the court.
The judgment is affirmed.
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Hanson v. Shell OIL Co., 541 F.2d 1352 (9th Cir. 1976)
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Traver v. Meshriy, 627 F.2d 934 (9th Cir. 1980)
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Simpson v. Union OIL Co. OF Cal., 411 F.2d 897 (9th Cir. 1969)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- NG Sing v. United States, 8 F.2d 919 (9th Cir. 1925)
- Travelers Fire Ins. Co. v. Ranney-Davis Mercantile Co., 173 F.2d 844 (10th Cir. 1949)