66 Wn.2d 521, DUANE EMERY, Respondent, v. WENDELL BROWN AGENCY, INC., Appellant

[No. 37544. Department One.      Supreme Court      June 24, 1965.]

DUANE EMERY, Respondent, v. WENDELL BROWN AGENCY,
                    INC., Appellant.*

[1] Appeal and Error - Review - Verdict. The Supreme Court will not substitute its judgment for that of the jury where there is substantial evidence to support the verdict.

[2] New Trial - Grounds - Newly Discovered Evidence. One of the requirements to justify the granting of a new trial because of newly discovered evidence is that the new evidence will probably change the result, if a new trial is granted.

Appeal from a judgment of the Superior court for Franklin County, No. 11584, James J. Lawless, J., entered November 26, 1963. Affirmed.

Action for damages. Defendant appeals' from a judgment entered on a verdict in favor of the plaintiff.

Leavy & Taber, by James Leavy, for appellant.

Peterson, Taylor & Day, by Stanley D. Taylor, for respondent.

PER CURIAM -

[1] There is sufficient evidence in the record to support the jury's verdict in this case that there was a course of conduct between the parties such that appellant was obligated to notify the respondent of the expiration of the latter's automobile insurance. This court will not substitute its judgment for that of the jury where

* Reported in 403 P.2d 671.

[2] See Ann. 10 A.L.R.2d 381; Am. Jur., New Trial (1st ed. 165).

 522    BROWN v. WELLS      [66 Wn. (2d)

there is substantial evidence to support the verdict. Kasey v. Suburban Gas Heat of Kennewick, Inc., 60 Wn.2d 468, 374 P.2d 549 (1962).

[2] Nor can it be successfully contended that the erroneous testimony of the bank president would have altered the outcome in any way. The testimony of appellant's agent, Richard D. Brown, rather than that of the bank president established the course of conduct already referred to. One of the requirements to justify the granting of a new trial because of newly discovered evidence is that the new evidence will probably change the result, if a new trial is granted. Nelson v. Placanica, 33 Wn.2d 523, 206 P.2d 296 (1949). We are not convinced that this requirement has been met here.

Judgment affirmed.