Turner v. Frey (81 So. 2d 721, 1955)

ROBERTS, Justice.

The defendant has appealed from an adverse verdict and judgment in a tort action filed against him by plaintiff on account of an alleged personal assault by defendant. He contends here that the trial judge erred in refusing to direct a verdict in his favor at the close of all the evidence and, in the alternative, that he is at least entitled to a new trial. We think the latter contention must be sustained.

In his order denying the defendant’s motions, the trial judge said:

“The evidence adduced was in direct conflict, the plaintiff giving one version of what happened and the defendant, bolstered by the testimony of two other witnesses, gave a version entirely at variance from what was set up in her [the plaintiff’s] testimony. I am free to say that had I been on the jury in this case, I would have found a verdict for the defendant, as both the physical facts and the corroborating testimony show that the matter could not have happened as was claimed by the plaintiff, but the jury chose to believe the plaintiff, and as I understand the rule, the Circuit Judge, even on a Motion for a New Trial, does not have the power to substitute his opinion of the facts for the opinion of the jury as expressed in the jury’s verdict.