The majority recognize that the case of Blackwood v. Eads,98 Ark. 304, 135 S.W. 922, correctly states the rule to be followed by this court in reviewing the action of the trial court in granting a new trial because the verdict of the jury appears to be contrary to the preponderance of the evidence. That case has been frequently reaffirmed, and we may all agree that it announces the settled practice to be followed by this court. In accordance with the principles which that case announced the majority say: "that the trial court is the only tribunal vested with power to determine whether or not a verdict is against the preponderance of the evidence." When the trial courts have performed their function of determining whether a verdict is or is not contrary to the preponderance of the evidence, that question *Page 764 is concluded, unless it is made to appear that the discretion of the court in determining that question was improvidently exercised. But when may this discretion be said to have been improvidently exercised? The case above cited answers this question expressly and very definitely. We quote from that case: "`Improvidently exercised,' as used above, means thoughtlessly exercised or without due consideration." The question presented to us on the appeal from the action of the trial court is not whether the trial judge has erroneously decided the question, but is whether he did so thoughtlessly and without due consideration.
We may not agree with the conclusion of the circuit judge; but we must not forget that it is he — and not ourselves — who has this function to perform. The trial court in this case prepared an elaborate written opinion, to which the majority refer. This opinion was not written on the "spur of the moment" nor "off the reel." This opinion was delivered at an adjourned term of the court, and recites and reflects the most serious consideration. It is now an usurpation of his function to say that through erroneous mental processes he reached a mistaken conclusion as to where the preponderance of the testimony lay. The fact remains, as the trial judge's opinion recites, that the conclusion was reached that the verdict was against the weight of the evidence. The discretion exercised by the court was not improvidently exercised, although it may have been erroneously exercised. But we do not reverse for the erroneous exercise of the discretion; we have that power only when the discretion has been improvidently exercised.
There was a sharp conflict on every question of fact in the case, and while it may be true that if the trial judge had correctly apprehended the testimony he would not have found that the verdict was contrary to the weight of the evidence; but he did make that finding, not improvidently, but after the maturest reflection, and if the case of Blackwood v. Eads, supra, is to be followed, the judgment should be affirmed.
Justices HUMPHREYS and MEHAFFY concur in the views here expressed. *Page 765