Boran v. New York Life Ins. Co.

ON REHEARING. After our opinion in the above cause (274 Mich. 638), appellee called to our attention, on motion for rehearing, the fact that no motion for new trial had been made in the court below, and that the question of whether the verdict was against the overwhelming weight of evidence was not properly before us. We thereupon granted rehearing.

The record discloses that the contention of appellee as to the fact is correct: that after verdict, defendant moved for judgment non obstante veredicto, and upon its denial, moved for a rehearing thereof. Both motions were denied. No motion for new trial was made. Therefore, on appeal, the weight of the testimony was not before us for consideration, and we may not consider it. Olshove v. Railroad Co., 263 Mich. 579; Olmstead v. Sober, 251 Mich. 688; In re McCord, 243 Mich. 309; Bacon v.Snashall, 238 Mich. 457; Bishop v. Shurly, 237 Mich. 76; Butler v. Neumann, 232 Mich. 25; Kaufman v.Kaufman's Estate, 230 Mich. 388; Taylor v. Goldsmith, 228 Mich. 259; Truesdell v. Railroad Co., 225 Mich. 374; Dunton v.Sweet, 210 Mich. 525; Clarke v. Case, 144 Mich. 148. See, also,Roger Angstman Co. v. Liggett Spring Axle Co., 267 Mich. 620, and Delta Asbestos Co., Inc., v. Sanders, 259 Mich. 317.

While we are reluctant to do so, we feel constrained, in view of our many previous decisions upon the matter, to allow the verdict and judgment thereon, as entered in the trial court, to stand.

The judgment of the circuit court is affirmed, with costs to plaintiff.

NORTH, C.J., and FEAD, WIEST, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred. POTTER, J., took no part in the decision of this case on rehearing.