
    Bradley v. Gearheart.
    (Decided February 17, 1922.)
    Appeal from Carter Circuit Court.
    ■New Trial — Setting Aside Verdict. — -Tie verdict of a properly instructed jury will not be set aside unle'ss flagrantly against the evidence, and in ith'is case St is held that ithe verdict on all thei issues ¡necessary to find for the plaintiff is not flagrantly against the evidence; nor was the alleged newly discovered testimony, even if diligence was exercised, which is not shown, sufficient to authorize the granting of a new trial.
    THEOBOLD & THEOBOLD for appellant.
    H. ¡L. WOODS for appellee.
   Opinion of the Court by

Judge Thomas

Affirming.

The main question involved in this appeal is whether the verdict of the jury in favor of plaintiff and appellee, F. N. Gearheart, against the defendant and appellant, S. M. Bradley, for the sum of $585.87 is sustained by the evidence. Plaintiff filed the action against defendant alleging that the latter, some- time in the spring of 1915, sold and converted to his use one lot of staves belonging to plaintiff at Boad Ford in Carter county of the value of $299.51, and in the same way converted to his use other staves at Wrigley, Kentucky, which also belonged to plaintiff, of the value of $286.33, the two alleged conversions aggregating the amount of the verdict.

It is admitted by defendant that he shipped the staves and collected and appropriated the proceeds therefor, but he contends that they belonged to him and not to the plaintiff. Upon the issue as to the ownership of the staves the evidence is amply sufficient to support the verdict that they were the property of plaintiff. Of course, as is usually the case, there was a contrariey of testimony upon that issue, but plaintiff’s testimony not only supported his contention but we think it preponderated‘in his favor, and being of this opinion we do not deem it necessary or serving any useful purpose to incorporate the testimony in this opinion.

The only issue of fact about which there could possibly he any serious controversy, and upon which it is seriously contended that the evidence was wholly insufficient to support the verdict, relates to the value of the staves at the time they were converted. Plaintiff introduced no direct testimony as to their value at that time, but without objection he testified what he paid for the staves at the time he purchased them some six months or more before then (a sum equal to the verdict), and likewise testified without objection that he obtained from defendant’s bookkeeper the price received for the staves when defendant sold them. He also testified to approximately the number of staves involved. None of that testimony was denied by defendant or by any witness who testified for him and it therefore stands as admitted. We think it was sufficient to authorize the jury to conclude that the staves when they were converted were of the samé value which defendant received for them when he sold them shortly thereafter; and, with the testimony as to their cost to plaintiff (which as said was not objected to), authorized the jury to return the verdict complained of. If the testimony had been objected to we could disregard it although the objections were overruled, in which event we could eliminate it from the case, leaving nothing therein to sustain the verdict. The condition of the record, however, prevents us from adopting that course, and'with nothing to overcome the prima facie case (though made by incompetent testimony) we are without authority to reverse the judgment upon this ground.

' The. motion for a new trial also relied on newly discovered evidence, but that ground is not seriously insisted on in this court, nor could it successfully be done, since the only effect of the alleged discovered testimony is to but faintly impeach two of plaintiff’s witnesses and is, consequently, of that character for which a new trial will not ordinarily be granted, unless it is so convincing as most likely tó produce a different result. It is not of that character; but if it were the requisite diligence is not shown, and upon the whole case we find no legal ground for reversing the judgment, and it is accordingly affirmed.  