Halstead v. Horton

• Decision Date: 27 January 1894
• Citation: 18 S.E. 953,38 W.Va. 727
• Parties: HALSTEAD v. HORTON.
• Court: West Virginia Supreme Court

18 S.E. 953

38 W.Va. 727

HALSTEAD v. HORTON.

Supreme Court of Appeals of West Virginia.

January 27, 1894

Submitted January 20, 1894.

Syllabus by the Court.

1. A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.

2. A motion to postpone until another day the submission of the case to the jury is addressed to the sound discretion of the trial court under all the circumstances, and the appellate court will not reverse a judgment on the ground of a refusal to postpone, unless such refusal plainly appears to have been an abuse of such discretion.

3. Where a party intends to review in the appellate court the action of the trial court in rejecting or admitting evidence he must make such ruling the subject-matter of a formal bill of exceptions, or he must in some way distinctly and specifically make such ruling a ground of his motion for a new trial.

4. A case in which these rules are applied.

Error to circuit court, Greenbrier county.

Action by Virginia Halstead against John D. Horton under the civil damage law. There was judgment for defendant, and plaintiff brings error. Affirmed.

J. W Arbuckle, for plaintiff in error.

Henry Gilmer, for defendant in error.

HOLT J.

This is an action of trespass on the case, brought in the circuit court of Greenbrier county on the 29th day of February, 1892 by the plaintiff, Mrs. Virginia Halstead, against defendant, John D. Horton, under section 20 of chapter 32 of the Code, (see Ed. 1891, p. 236,) averring that she was injured in property and means of support in consequence of the intoxication of her husband, John J. Halstead, caused by defendant, on the 27th day of November, 1891, at the town of Ronceverte, by said defendant then and there unlawfully selling and giving him intoxicating liquors, whereby, among other things, defendant caused her husband to lose, squander, and waste the sum of $600, her sole and separate property, then in her husband's possession, laying her damages at $5,000. The case was tried by a jury on the plea of not guilty, and on the 15th of July, 1892, the jury returned a verdict for defendant. Thereupon the plaintiff moved the court to set aside the verdict and grant her a new trial, because the same was contrary to the law and the evidence; also on the ground of newly-discovered evidence, and because the defendant procured the verdict by false evidence, and a fraud upon the jury; but the court overruled the motion, and gave judgment for the defendant, and plaintiff obtained a writ of error. All the evidence is certified, but no instruction was asked by either party, and none was given. During the progress of the trial, after plaintiff had introduced her evidence in chief, and defendant had closed his evidence, plaintiff called John G. Tobin, who stated: "I know John D. Horton. I have seen John J. Halstead." Witness was then asked by plaintiff: "Did you see John J. Halstead, and examine him at the time he was robbed in Ronceverte? If so, did he have any money?" Question objected to by counsel for defendant. Objection sustained, and plaintiff excepted. Plaintiff, by her counsel, then moved the court to continue the case until next morning (it being about 5 o'clock P. M.,) that plaintiff might get an important witness, (John F. Bowes,) stating he had been regularly summoned, and had gone to Caldwell, about four miles from the courthouse. The court overruled plaintiff's motion, and refused to continue the case, to which ruling of the court the plaintiff excepted, and prayed that her exception be saved to her, which was done.

The law of the case involved in the trial is as follows: "If any person having a state license to sell spirituous liquors *** shall sell or give any such liquors *** to any person who is intoxicated at the time, or who is in the habit of drinking to intoxication, when he knows or has reason to believe such person *** is intoxicated or is in the habit of drinking to intoxication, or if he permit any person to drink to intoxication on any premises under his control, *** he shall be guilty of a misdemeanor, and fined not less than twenty nor more than one hundred dollars." Code, c. 32, § 16. "Every husband, wife, child, parent, guardian, employer or other person, who shall be injured in person or property or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name, *** against any person who shall, by unlawfully selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person." Code, c. 32, § 20. The undisputed facts are as follows: About the 27th day of November, 1891, at the time in question, John D. Horton had license to sell whisky, etc., at his premises in the town of Ronceverte. On that day the husband, John J. Halstead, came to defendant's saloon, having about $288 in currency and a check on the Bank of Ronceverte for $312, the proceeds of the sale of a lot of cattle, the sole and separate property of plaintiff. John J. Halstead told defendant, Horton, he had a check, and wanted him (Horton) to go to the bank to identify him. Defendant went to the bank, and said to the cashier, "Mr. Morton, this is John Halstead, from Nicholas county, ex-sheriff." Defendant went out of the bank, and the cashier cashed Halstead's check for $312. Horton sold him a quart bottle of whisky before they went to the bank. Halstead went back to the saloon. He went to a restaurant, got his breakfast, drank some out of the bottle, became intoxicated to insensibility. When he came to, he was in the "lockup," and all his money was gone. The only question in dispute was, was the sale or sales by Horton unlawful? There is no question on this evidence that the husband, John J. Halstead, was then and before in the habit of drinking to intoxication; but did defendant know, or have reason to believe, that such was the habit of John Halstead? Halstead had been in Ronceverte in the fall of 1890, about November, "was on a spree several days," and was in Horton's premises during that spree; but defendant says in his evidence that about July 14, 1890, he went to Buckhannon, Va., under a contract to superintend some grading, and was only at home on Sundays to see his family, until December 3d; that he would come home Saturday night, and go back to Buck-hannon on Monday. Plaintiff, on her motion for a new trial on the ground of newly-discovered evidence, files the affidavits of three witnesses, who state that there was a camp meeting in Greenbrier county, eight miles west of Lewisburg, beginning on the 16th day of August, 1890, lasting about one week, and that defendant, Horton, was at the camp meeting for several days; but this does not cover the time in November, 1890, when Halstead was drunk and drinking in Ronceverte; but this would only go to the credit of the witness, "and the general rule is that a new trial will not be granted to enable the party asking it to discredit a witness who testified against him on a former trial." State v. Betsall, 11 W.Va. 703. When in the evening, about 5 o'clock P. M., at the close of her evidence in rebuttal, plaintiff moved the court to continue the case until the next morning, to enable her to have present and examine the "important witness John T. Bowes, who had been summoned, had been present, but was then absent, being at a place about four miles away, the court, in the exercise of its wise discretion, and as is often done in such circumstances, could without error have continued the case until morning; but there is nothing in this record to show that the court, in refusing to do so, abused such discretion, or in any respect plainly committed error. There is no affidavit of his materiality, no statement of what plaintiff expected to prove by him, whether it was in rebuttal or in chief, or anything by which this court can determine upon its competency, much less its importance; and the business of the court, may have been urgent and pressing, and, in any event, the plaintiff then had it in her power as matter of right to suffer a non-suit. The question asked the witness John G. Tobin by plaintiff and rejected by the court would seem to have been relevant and material, for the loss of $600 from the person of John J. Halstead, as caused by his intoxication, is expressly averred in the declaration; and it would seem to have been also admissible in rebuttal, as tending to show that it was not upon his person when he was put in the "lockup." But the counsel for plaintiff seem to have abandoned the question, although, when the objection was sustained, they noted an exception. At any rate, they did not modify the question so as to relieve it from the objection of assuming an important fact not proved. There is nothing but the inference to be drawn from the question itself to inform this court what answer the witness was...