Bullock v. Williams

• Decision Date: 23 March 1938
• Docket Number: 238.
• Citation: 195 S.E. 791,213 N.C. 320
• Parties: BULLOCK v. WILLIAMS.
• Court: North Carolina Supreme Court

195 S.E. 791

213 N.C. 320

BULLOCK v. WILLIAMS.

No. 238.

Supreme Court of North Carolina

March 23, 1938

Appeal from Superior Court, Harnett County; H. A. Grady, Judge.

Action by David Bullock against M. K. (Bud) Williams for personal injuries wherein defendant filed a motion for new trial after judgment for plaintiff. Judgment granting a new trial, and plaintiff appeals, assigning error.

Error.

In action for personal injuries, so-called newly discovered evidence which was merely cumulative and tended only to contradict former witnesses did not warrant a new trial.

Motion for new trial for newly discovered evidence.

The action for recovery of damages for personal injury resulting allegedly from actionable negligence was tried at the February term, 1937, of the superior court of Harnett county. From judgment on verdict in favor of the plaintiff, defendant appealed to Supreme Court. Judgment was affirmed at the fall term 1937. 212 N.C. 113, 193 S.E. 170. Opinion was duly certified to the clerk of the superior court of Harnett county. At the next succeeding term of said superior court the November term, 1937, defendant filed motion for new trial upon ground of newly discovered evidence.

The judge below in his discretion allowed the motion, and in accordance there-with rendered judgment granting new trial from which plaintiff appealed to Supreme Court, and assigned error.

Neill McK. Salmon, of Lillington, for appellant.

J. R Young, of Dunn, and J. A. Jones, of Kinston, for appellee.

PER CURIAM.

The prerequisites to the granting of motion for new trial for newly discovered evidence are fully set forth in Johnson v. R. Co., 163 N.C. 431, 79 S.E. 690, Ann. Cas.1915B 598; also in Brown v. Hillsboro, 185 N.C. 368, 117 S.E. 41; Brown v. Sheets, 197 N.C. 268, 148 S.E 233, 63 A.L.R. 1357; State v. Casey, 201 N.C. 620, 161 S.E. 81; Love v. Queen City Lines, 206 N.C. 575, 174 S.E. 514; Wilmington Furniture Co. v. Cole, 207 N.C. 847, 178 S.E. 579.

An examination of the affidavits offered by defendant in support of the motion fails to show compliance with the tests required. When compared with the evidence introduced at the trial of the case in superior court, it is observed that the so-called newly discovered evidence is merely cumulative and tends only to contradict former witnesses.

"Although the discretionary ruling of the trial court upon an application for new trial for newly discovered...