Fulwider v. Jacob, 2 Div. 961.

• Decision Date: 17 April 1930
• Docket Number: 2 Div. 961.
• Citation: 221 Ala. 124,127 So. 818
• Parties: FULWIDER v. JACOB.
• Court: Alabama Supreme Court

127 So. 818

221 Ala. 124

FULWIDER v. JACOB.

2 Div. 961.

Supreme Court of Alabama

April 17, 1930

Appeal from Circuit Court, Marengo County; T. J. Bedsole, Judge.

Action for damages for personal injuries by Clayton Fulwider, a minor suing by his next friend, J. F. Fulwider, against D. F Jacob. From a judgment for defendant, plaintiff appeals.

Affirmed.

S. F Hobbs, of Selma, for appellant.

London Yancey & Brower and Whit Windham, all of Birmingham, for appellee.

SAYRE J.

Plaintiff's case was that, riding a motorcycle along the highway and in the act of passing defendant's truck, moving in the same direction, the truck was abruptly and without warning turned to the left, thereby coming into collision with plaintiff's motorcycle and causing the injuries of which he complained. Defendant's denial was that the driver of his truck had no occasion to turn to the left at that point did not turn to the left, and had no knowledge of plaintiff's proximity until he heard and felt the contact between the two machines. The issue between the parties was clearly one of fact for jury decision. After a verdict for defendant, plaintiff's motion for a new trial, on the ground of newly discovered evidence, was overruled, and this ruling alone is assigned for error.

Section 9518 of the Code of 1923 represents an effort to codify the case law on the subject of new trials. It is still the law, as it was before this attempt at codification, that, generally speaking, parties are entitled to a new trial on the ground of newly discovered evidence only when they have shown diligence in their effort to prepare their cases for trial and the new evidence is not merely cumulative of the evidence offered at the trial. Twelve columns of cases are cited to this general proposition in 46 C.J. p. 273, § 242, which we cite without further detail. Public policy and the interest of litigants in general require that cases, once fairly tried, shall not be reopened save upon convincing grounds going to show that injustice has been done. When such a case is made to appear, the interest of justice requires that the court should exercise its inherent power by granting a new trial. 46 C.J. p. 416, § 472, notes 81-84.

We think appellant, plaintiff, must be acquitted of any lack of diligence save in one respect only: Plaintiff, according to the showing made on his motion-and his allegation of facts so far as concerned his antecedent diligence, was not put in issue-was unusually diligent in his effort to locate two witnesses whose presence on or near the scene of the accident was learned by him shortly before the trial, but was successful in that effort only on the evening before the trial. An affidavit by...