The majority, as indicated, are of the opinion that the statute (section 9519, Code of 1923) applies only after two new trials granted upon the ground that the verdict is not supported by the weight of the evidence, where the verdicts were rendered upon substantially the same evidence; that the new trial ordered by this court in Windsor Realty Co. v. Finnegan, 202 Ala. 17, 79 So. 355, upon the ground of newly discovered evidence, is not to be considered within the statute; that, therefore, the new trial ordered in Windsor Realty Co. v. Finnegan, 210 Ala. 314, 97 So. 822, was the first new trial within the statute; and, the present appeal being from the second judgment governed by the statute, it is subject to review on motion for new trial.
The court adheres to the views expressed in the opinion of Mr. Justice Sayre on the second appeal, and holds that the motion for a new trial should have been granted on the ground that the verdict was contrary to the great weight of the evidence. The writer desires by way of dissent to say:
The two new trials in the case at bar are 202 Ala. 17,79 So. 355, in which appeal the reversal was rested solely on the ground of the failure of the lower court to grant a new *Page 433 trial to plaintiff on the newly discovered evidence, and210 Ala. 314, 97 So. 822, where, with said evidence, this court again reversed the lower court upon its failure to grant a new trial, on the ground that the verdict was against the great weight of the evidence. It is now insisted that a third reversal should be had, to the same end, as to the weight of the evidence.
The meaning of the statute, declaring, as it does, "no more than two new trials can be granted the same party in any cause" (section 9519, Code of 1923, and unchanged from section 2407, Code of 1852, and Aiken's Digest, p. 283, § 135), has not been defined by this court. Looking to other jurisdictions for construction and application of like statutes, we are not without worthy precedents. Railway Co. v. Mahoney, Admrx.,89 Tenn. 326, 334, 15 S.W. 652; L. N. R. Co. v. Green, 100 Tenn. 238,47 S.W. 221; Bristow v. Nichols, 19 R.I. 719, 37 A. 1033. The obvious meaning of our statute is that no more than two new trials can be had on the merits and the same issues of fact, where such issues are fairly presented and left to the triers of fact upon proper evidence and instructions, and there being legal evidence before the court to support the verdict or judgment rendered; that is to say, this statute did not intend, preclude, or prevent the court from granting new trials for error in instructions given or refused, or error in the admission or rejection of testimony, for vitiating misconduct of the parties, counsel, or jurors, etc.
In Ill. Cent. R. Co. v. McManus, 118 Ky. 780, 82 S.W. 399, 26 Ky. Law Rep. 675, it was held that, the first new trial having been granted by the appellate court on the ground of insufficient evidence and failure of the lower court to grant a new trial on account of newly discovered evidence, and the second new trial granted on the ground that the verdict was not sustained by the evidence, the motion for a third new trial, on the ground of passion and prejudice and that the verdict was not sustained by the evidence, should be denied under the statute barring the granting of more than two new trials. Civil Code Prac. Ky. § 341.
In the case of L. N. R. Co. v. Woodson, 134 U.S. 614,10 S.Ct. 628, 33 L.Ed. 1032, the Supreme Court of the United States construed a similar statute of Tennessee on the subject of new trials, and after two verdicts upheld the same in the interest of termination of litigation, and declared not in conflict with the Fourteenth Amendment to the Constitution of the United States. The statute thus construed was: "Not more than two new trials shall be granted to the same party in any action at law, or upon the trial by jury of an issue of fact in equity." Acts 1801, c. 6, § 59; 1 Laws of Tenn. (Hayw. Cobbs) 1831, p. 229; Code 1858, § 3122, p. 590; Code Tenn. 1884, § 3835, p. 735. In its opinion, among other things, Mr. Chief Justice Fuller said:
"Tested by this rule, whenever the statute is applied, it must be upon the assumption that, although the court would have found a different verdict, because of the weakness of the evidence, yet there was some evidence tending to establish the cause of action. Courts rarely grant a new trial after two verdicts upon the facts in favor of the same party, except for error of law, and the statute, in the interest of the termination of litigation, makes that imperative which would otherwise be discretionary. For decisions under similar statutory provisions, see Silsbe v. Lucas, 53 Ill. 479; Illinois Cent. R. Co. v. Patterson, 93 Ill. 290; Carmichael v. Geary, 27 Ind. 362; Boyce v. Smith, 16 Mo. 317; Wildy v. Bonney, 35 Miss. 77; Rains v. Hood, 23 Tex. 555; Watterson v. Moore, 23 W. Va. 404. We can perceive nothing in the statute thus applied which amounts to an arbitrary deprivation of the rights of the citizen, and concur with the Supreme Court of Tennessee that this act, which had been in force for more than 60 years before the adoption of the Fourteenth Amendment, was not invalidated by it, while the Fifth Amendment had no application whatever."
The express provisions of section 9519 of the Code, under the issues of fact heretofore supporting reversals, prevent the considering of the motion for a new trial on grounds of preponderance and insufficiency of the evidence, there being evidence to support the verdict upon the trial.
Rehearing granted, judgment of affirmance set aside, and the judgment of the circuit court is reversed, and one is here rendered granting the motion for a new trial.
ANDERSON, C. J., and SAYRE, SOMERVILLE, BOULDIN, and BROWN, JJ., concur.
GARDNER and THOMAS, JJ., dissent.