Domanski v. Woda

• Decision Date: 10 February 1937
• Docket Number: 26060.
• Citation: 6 N.E.2d 601,132 Ohio St. 208
• Parties: DOMANSKI v. WODA et al.
• Court: Ohio Supreme Court

6 N.E.2d 601

132 Ohio St. 208

DOMANSKI v. WODA et al.

No. 26060.

Supreme Court of Ohio

February 10, 1937

Syllabus by the Court.

1. New trials on the ground of newly discovered evidence are not favored by the courts.

2. The granting or refusing of a new trial on the ground of newly discovered evidence rests largely within the sound discretion of the trial court, and when such discretion has not been abused reviewing courts should not interfere.

3. Newly discovered evidence is other than that which might have been known before the termination of a trial had due diligence been used.

4. Where during the trial of a case a party is given reasonable cause to believe that favorable and available evidence of a material nature exists, it is his duty, in the exercise of due diligence, to ask for a continuance, if necessary, to investigate, and to produce such evidence, if found. Having finally submitted the case without doing so, and having searched for and found the evidence after verdict, he may not then successfully claim the right to a new trial on the basis that such evidence is newly discovered.

Ben V Domanski, appellant, was involved in an automobile accident on January 1, 1934, suffering a severe injury to his right eye.

While riding as a passenger in his uncle's automobile on January 16, 1934, en route to consult Dr. Paul G. Moore, an eye specialist of Cleveland, concerning his damaged optic, a motortruck belonging to the Woda brothers, appellees collided with the automobile in which appellant was seated.

Claiming this collision was due to the negligence of appellees under conditions making them liable, and that additional and irreparable harm was thereby occasioned to his eye, appellant sued appellees in the common pleas court of Cuyahoga county and recovered a verdict of $3,000, upon which judgment was entered.

The petition in error in the Court of Appeals contained the usual assignments of error. Pressed most strenuously was the one alleging prejudicial error by the trial court in refusing to grant a new trial for newly discovered evidence relating to testimony which would be given by Dr. Paul G. Moore, who examined appellant's eye on January 16, 1934, and removed the eyeball some eight days later.

Two of the three judges of the Court of Appeals favored reversal on such ground. Included in the judgment entry is the following statement:

'The judgment of the said Court of Common Pleas is reversed, for error in overruling the motion for new trial on the ground of newly discovered evidence; no other error appearing in the record, and this cause is remanded to said Court of Common Pleas for further proceedings.'

Certification of its record by the Court of Appeals upon order of this court brings the case here on its merits.

Vickery, Duffey & Vickery and David J. Brophy, all of Cleveland, for appellant.

Klein & Diehm, of Cleveland, for appellees.

ZIMMERMAN Judge.

One of the causes for granting a new trial is enumerated in section 11576, General Code of Ohio, as follows:

'7. Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at the trial.'

Turing to the record in the instant case, we find that after appellant had testified fully as to his injury, appellees offered as their witness Dr. Robert F. Thaw, an eye specialist of Akron, to testify on the same subject. He had examined and treated appellant's eye shortly after the first accident, and saw him thereafter once or twice up to and including January 6th. He testified in part:

'The eyeball was cut, had a deep cut running transversely across the eye, almost in the center.' 'It was through all the coats of the eye.' 'He had loss of vitreous.' 'He had no sight as long as I saw him.' 'I advised him to have the eye enucleated.'

Dr. Moore, of Cleveland, who enucleated or removed appellant's eyeball on January 24, 1934, was temporarily out of the city during the trial. He had not been subpoenaed by either appellant or appellees before trial. However, appellees called as their witness Miss Louise E. Stewart, graduate nurse from the University of Michigan Hospital, who was assistant and secretary to Dr. Moore and had been for a period of over seven years. She brought with her Dr. Moore's written record pertaining to appellant's injury.

She testified that when appellant arrived at Dr. Moore's office on January 16th 'he appeared perfectly normal' and bore no evidence of any recent injury. The witness was permitted to read that part of Dr. Moore's record which he made in his office on January 16th, with some later notations. Extracts therefrom are as follows:

'On January 1, 1934, at 4:00 p. m. was driving his own car coming from work on Richfield Hudson Road, Peninsula Road, was going up hill when machine backed out of driveway and stalled in road. In order to avoid striking this car, Domanski skidded his car into ditch. Struck accelerator and ran up bank and turned over. Glass from right door struck him in the right eye. Has pain in the right eye constantly.

'Has straight linear scar 1 1/2 inches long from inner canthus outward and furrow extending down to the lid margin to outside of upper puncta. Right eye, lacerated wound, one centimeter long through ciliary body at two o'clock [referring to angle] in the center of the cornea.

'Prolapse of iris and lens tissue into wound. Degenerative change in cornea. Cornea surface roughened. Iris is discolored. Marked ciliary reaction. Advised removal of eyeball as it is sightless. * * * Pick to right eye. Use atrophine ointment. Has been examined by Dr. Thaw at St. Thomas' Hospital. To enter Lakeside Hospital through dispensary for enucleation 1/24/34. * * * Prolapse of iris and...