
    143 So. 559
    REED v. THOMPSON.
    7 Div. 125.
    Supreme Court of Alabama.
    Oct. 6, 1932.
    L. H. Ellis, of Columbiana, for appellant.
    Stokely, Serivner, Dominick & Smith, of Birmingham, for appellee.
   ANDERSON, C. J.

The plaintiff obtained a verdict, and upon a motion for new trial the trial court set aside the verdict, and the plaintiff appeals from the judgment granting the new trial as authorized by section 6088 of the Code of 1923.

In the early case of Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738, 740, repeatedly cited and followed, the rule was laid down that upon motion for new trial, based upon the fact that the verdict or judgment was contrary to the evidence, a presumption will be indulged in favor of the action of the trial court when there is a conflict in the evidence. That is, on appeal in such eases, this court will not reverse an order granting a new trial, “unless the evidence plainly and palpably supports the verdict,” and it will not reverse an order refusing a new trial on the ground that the evidence is not sufficient to support the verdict, or that the verdict is contrary to the evidence, “unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.”

There was a conflict in the evidence as to the nature of the contract of employment; the plaintiff testifying to one kind of contract and the defendant another. There was also evidence that plaintiff was claiming more than he was entitled to out of the dairy, and we are not prepared to say that the evidence so plainly and palpably supported the verdict as to put the trial court in error for granting a new trial, and the judgment of the circuit court is affirmed.

Affirmed.

GARDNER, BOITLDIN, and FOSTER, JJ., concur.  