Fries v. Acme White Lead & Color Works

Decision Date18 April 1918
Docket Number6 Div. 739
Citation79 So. 45,201 Ala. 613
PartiesFRIES v. ACME WHITE LEAD & COLOR WORKS.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by the Acme White Lead & Color Works against Mrs. R.H. Fries. From the judgment or order overruling defendant's motion for new trial, she appeals. Transferred from the Court of Appeals under Act April 18, 1911, p. 449, § 6. Reversed and remanded.

Harsh Harsh & Harsh, of Birmingham (Jones, Thomas & Field, of Montgomery, of counsel), for appellant.

Ritter & Wynn, of Birmingham, for appellee.

THOMAS J.

Appellant rests her appeal on the failure of the court to grant her motion for a new trial on the ground of newly discovered evidence, and the failure to give at her request the affirmative charge.

The generally accepted rules, obtaining in many jurisdictions, as to the granting of a new trial on the ground of newly discovered evidence, are: (1) The newly discovered evidence must be such as could not, with reasonable diligence, have been discovered in time to be produced at the trial; (2) it must be such as to render probable a different result on the retrial of the case.

To these requirements, and as corollaries thereto, the courts have added certain others: (a) That the newly discovered evidence must be material and competent to the issue of fact originally tried; (b) that it must be not merely impeaching evidence; (c) that it must not be merely cumulative.

Regarding this first requirement, our court has declared that the evidence must have been discovered since the original trial (Baker v. Boon, 100 Ala. 622, 13 So. 481; Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496, 499 18 So. 175, 54 Am.St.Rep. 114; L. & N.R.R. Co. v. Church, 155 Ala. 329, 46 So. 457, 130 Am.St.Rep. 29); that if it was not discovered until the case was called for trial, or during the trial thereof, the party at interest must have moved for a continuance, or have taken such legal steps to postpone the trial as the circumstances of the particular case required, to procure the evidence so lately discovered (Hoskins v. Hight, 95 Ala. 284, 11 So. 253; Southern Railway Co. v. Dickens, 149 Ala. 651, 43 So. 121; Geter v. Central Coal Co., 149 Ala. 578, 43 So. 367).

It is required, therefore, that the motion for a new trial on the ground of newly discovered evidence must negative fault on the part of the movent in the failure to discover, before the trial, the evidence on which the motion is based. Lowery v. State, 98 Ala. 45, 13 So. 498; K.C., M. & B.R.R. Co. v. Phillips, 98 Ala. 159, 13 So. 65; Bayonne Knife Co. v. Umbenhauer, supra; McLeod v. Shelly Mfg. & Imp. Co., 108 Ala. 81, 19 So. 326; Simpson v. Golden, 114 Ala. 336, 21 So. 990; Jernigan v. Clark, 134 Ala. 313, 32 So. 686; L. & N.R.R. Co. v. Church, supra; Fitts & Son v. Bryan, 166 Ala. 133, 52 So. 333; Woodward Iron Co. v. Sheehan, 166 Ala. 429, 52 So. 24; L. & N.R.R. Co. v. Abernathy, 192 Ala. 629, 69 So. 57; Newton Loan & Banking Co. v. Reeves, 2 Ala.App. 411, 56 So. 255. In other words, it must aver and show that the failure to produce the evidence in question on the original trial was not due to any lack of proper diligence on the part of the movent. Girardino v. Birmingham Sou. R.R. Co., 179 Ala. 420, 60 So. 871; McLeod v. Shelly Mfg. & Imp. Co., supra.

The requirement that the newly discovered evidence must be such as to render a different result probable on the retrial of the case was recognized by this court in Beadle v. Graham's Adm'r, 66 Ala. 102; Schlaff v. L. & N.R.R. Co., 100 Ala. 377, 14 So. 105; Cent. of Ga. Ry. Co. v. Geopp, 153 Ala. 108, 45 So. 65. See, also, 6 Mayfield's Digest, p. 673, § 37; Hayne on New Trial, § 89 et seq.; Oberlander v. Fixen, 129 Cal. 690, 62 P. 254; Vickers v. Phillips Cary Co., 49 Okl. 231, 151 P. 1023, L.R.A.1916C, 1155.

Of the corollaries or requirements added by the courts generally to the two fundamental rules above stated, our court has declared: (a) The newly discovered evidence must be material and competent on the retrial of the issue presented on the original trial. Alabama Midland Ry. Co. v. Johnson, 123 Ala. 197, 26 So. 160; Girardino v. B.S. Ry. Co., supra; Beadle v. Graham's Adm'r, supra; McLeod v. Shelly Mfg. & Imp. Co., supra. (b) It must not be merely evidence impeaching the former evidence. 6 Mayf.Dig. 673, §. 37; Graham's Waterman New Trials, p. 1021; 14 Ency.Pl. & Pr. p. 807. That is to say, new evidence which merely tends to discredit an adverse party or his witnesses will not avail as a ground for a new trial, "as such testimony may be discovered in almost every case, and there must be an end to litigation." Holt v. State, 47 Ark. 196, 1 S.W. 61; Klockenbaum v. Pierson, 22 Cal. 160; Christ v. People, 3 Colo. 394; Pace v. State, 63 Ga. 159; Tobin v. People, 101 Ill. 121; Humphreys v. State, 75 Ind. 469; Morrow v. Chicago, etc., R. Co., 61 Iowa, 487, 16 N.W. 572; Parker v. Bates, 29 Kan. 597; Clarke v. Rutledge, 2 A.K.Marsh. (Ky.) 381; State v. Chambers, 43 La.Ann. 1108, 10 So. 247; Bradbury v. Cony, 62 Me. 223, 16 Am.Rep. 449; Hammond v. Wadhams, 5 Mass. 353. See many other authorities collected in 14 Ency.Pl. & Pr. p. 807. And the new evidence must be not only of such character as to tend to impeach or discredit evidence that materially influenced the result, but sufficient to probably change the result should a new trial be granted. Fabrilius v. Cock, 3 Burr. 1771; Phillips v. State, 35 Tex.Cr.R. 480, 34 S.W. 272. (c) Furthermore, the newly discovered evidence must be not merely cumulative, that is, of the same kind and to the same point. Ala.Mid.R. Co. v. Johnson, supra; Smith v. B.R., L. & P. Co., 147 Ala. 702, 41 So. 307; Southern Hardware & Supp. Co. v. Block Bros., 163 Ala. 81, 50 So. 1036; Wilkinson v. Bottoms, 174 Ala. 122, 56 So. 948; Girardino v. B.S.R. Co., supra; McLeod v. Shelly Mfg. & Imp. Co., supra; Newton Loan & Banking Co. v. Reeves, 2 Ala.App. 411, 56 So. 255; A.M. Ry. Co. v. Johnson, supra; 6 Mayf.Dig. 673, § 37; L.R.A. 1916C, 1155 et seq.; 14 Ency.Pl. & Pr. 806 et seq.

Whether the "cumulative evidence" is additional evidence of the same kind and to the same point as that given on the original trial, or is distinct and independent evidence of a different character, tending to establish the same ground of claim or defense, was carefully considered in Layman v. Minneapolis St. Ry. Co., 66 Minn. 452, 69 N.W. 329; Vickers v. Phillips Cary Co., supra; Waller v. Graves, 20 Conn. 305; Gans v. Harmison, 44 Wis. 323; Andersen v. State, 43 Conn. 514, 21 Am.Rep. 669; Hart v. Brainerd, 68 Conn. 50, 35 A. 776; Parshall v. Klinck, 43 Barb. (N.Y.) 212; Doe v. Barbineau, 11 New Bruns. 89; Smith v. Smith, 119 Cal. 183, 48 P. 730, 51 P. 183; Nixon v. Christie, 84 Ga. 469, 10 S.E. 1087; Reardon v. Steep, 74 Ill.App. 162; Chapman v. Moore, 107 Ind. 223, 80 N.E. 80; Hinson v. Catoe, 10 S.C. 311; Conrad v. Conrad, 9 Phila. (Pa.) 510; Quigley v. Birdseye, 11 Mont. 439, 28 P. 741; Bullard v. Bullard, 112 Iowa, 423, 84 N.W. 513; Cole v. Cole, 50 How.Prac. (N.Y.) 59, 61; L.R.A.1916C, 1162, etc.; 2 Words & Phrases, page 1783; Chamberlayne Ev. § 549; 8 Am. & Eng.Ency. of Law, 462; 29 Cyc. 907. These general rules governing the granting of new trials obtain in many jurisdictions, and many of the authorities thereon are collected in Vickers v. Phillips Cary Co., supra, 49 Okl. 231, 151 P. 1023, L.R.A.1916C, 1155. A number of these authorities are rested on the early statement (1851) of these rules announced by Mr. Justice Lumpkin in Berry v. State, 10 Ga. 511, 527.

When movent's application for a new trial is tried by the foregoing test, it is shown to have been sufficient, and it should have impressed the trial court with the necessity for granting a new trial on the ground of newly discovered evidence. It is clear that since the trial, and not by reason of her belated diligence, but by reason of "accident, voluntary disclosures, or other fortuitous circumstances, after all diligence on her part had been exhausted before the trial," such evidence came to her knowledge or to that of her husband, who was assisting in the defense of her suit. K.C., M. & B.R.R. Co. v. Phillips, supra (98 Ala. 170, 13 So. 65); Woodward v. Sheehan, supra. The very nature of plaintiff's evidence, brought out on the trial by a question propounded to plaintiff's manager, Heins, by a juror, shows that it could not have been apprehended or sooner produced by defendant. Of this evidence the bill of exceptions recites that Mr. Heins, the manager of plaintiff's Birmingham branch, as a witness for plaintiff, testified that he spoke to Mrs. Fries over the phone about the account, and that she refused to pay any part of it, referring plaintiff's agent to her husband, and that thereupon a juror, Ed Warren, interrupted the witness by asking "Did you instruct your clerks not to credit Mr. Fries?" and that the reply was, "Yes.". Neither could defendant have apprehended that said witness for plaintiff (Heins) would testify to a private business custom, enforced in the keeping of plaintiff's books in said business, to use or write on the ledger one number for all the members of the same family buying on credit from the plaintiff, and for this reason the account marked A-319 on plaintiff's ledger, made out in the name of Richard H. Fries, was made out by plaintiff's former bookkeeper, Mr. Griswold, in the handwriting of said bookkeeper on the left-hand side of said ledger, being the name of Mrs. R.H. Fries; and that he would on cross-examination testify that he did not know in whose handwriting this account was made out to Mrs. Fries.

It was competent and material testimony, presented to the court in support of the motion for a new trial as newly discovered evidence that Wm. H. Harris,...

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