Ruben D. Oswald, Appellant, v. William M. Cruz, Appellee, 289 F.2d 488 (9th Cir. 1961)

Oswald, as a guest passenger of Cruz in his automobile while the latter was driving, was injured. On the first trial for negligence, Oswald received a favorable verdict. A new trial was granted on the ground that the verdict went against the weight of evidence and upon the ground of misconduct of Oswald's counsel during the trial.

At a second trial, the verdict went in favor of Cruz. Now Oswald appeals alleging that the granting of the new trial which took away his verdict was error.

We cannot agree with appellee that no right of appeal lies. 6 Moore's Federal Practice 3896. However, our scope of inquiry is limited to seeing if there was a clear abuse of discretion. NG Sing v. United States, 9 Cir., 8 F.2d 919; Travelers Fire Insurance Co. v. Ranney-Davis Mercantile Co., 10 Cir., 173 F.2d 844.

After reviewing the record, we can get no further than to be able to say that maybe the trial court was right and maybe it was not. Thus, we arrive short of finding a clear abuse of discretion. Particularly in the field of conduct of counsel we only have the written record. We shall never know in this case the tone of voice and the grimaces, if any, that accompanied Oswald's counsel's persistence in attempting to override rulings of the court.

The judgment is affirmed.