Domico

Action to recover damages for personal injuries sustained by the plaintiff at the hands of the defendant.

The jury rendered a verdict in favor of the plaintiff for seven hundred and fifty dollars. Upon a motion for a new trial by the defendant on the ground, among others, of insufficiency of the evidence to justify the verdict, the court made an order granting the motion, unless the plaintiff should within twenty days remit all of the verdict above three hundred dollars and costs, and, if such remission be made, that a new trial be denied. The plaintiff declined to remit, and has appealed from the order.

The evidence in the record fails to show that the actual damage sustained by the plaintiff was as great as the amount of the verdict, and the jury were not authorized to give exemplary damages unless there was some evidence of oppression, fraud, or malice. (Civ. Code, sec. 3294.)

The granting or denying a new trial on the ground that the evidence is insufficient to justify the verdict, where there is a substantial conflict in the evidence, rests so fully in the discretion of the trial court that its action is conclusive upon this court, unless it appears that there has been an…