Harden v. Card
| Decision Date | 11 January 1907 |
| Citation | 88 P. 217,15 Wyo. 217 |
| Parties | HARDEN v. CARD |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.
J. W Card brought suit against Charles Harden to recover a sum of money alleged to be due for wages. After verdict and judgment for plaintiff, the case was taken to the Supreme Court on error by the defendant. The facts are stated in the opinion.
Affirmed.
McMicken & Blydenburgh and N. E. Corthell, for plaintiff in error.
In view of several facts in the case fully proven or admitted on the trial, the claim of the plaintiff is so incredible that no verdict should be permitted to rest upon it. That is especially true in the light of the newly-discovered evidence, the existence and applicability of which became apparent only when the plaintiff had testified. The various circumstances connected with the continued dealings of the parties are utterly inconsistent with the contention of the plaintiff below. It was the plaintiff's duty to make out his case by credible evidence. Bare assertions opposed to proved or admitted facts are not to be blindly received and unreasonably credited, where material circumstances disclosed in the evidence refute them; and when such circumstances are numerous and independently point to the same conclusion, they become practically irresistible and exclude every other hypothesis. (Jones v. Farmer (Ga.), 10 S.E. 626.) A verdict will be set aside where all the reasonable probabilities and overwhelming weight of evidence are against it, or the testimony on one side is consistent and in harmony with known facts. (Gendron, &c., Co. v. Sautshi, 17 O. Cir. Ct., 723; Hunt v. Caldwell, 11 O. Cir. Dec 562; Wunderlicht v. Ins. Co., 104 Wis. 382; Lee v. Ry. Co. (Wis.), 77 N.W. 714; Ferst v. O'Neil (Ala.), 19 So. 307; Davis v. Miller, id., 699; Dickey v. Davis. 39 Cal. 565; Holden v. Ry. Co. (Pa.), 32 A. 103; Rebul v. Chalker, 27 Conn. 114; Boyd v. Colt, 20 How. Pr., 384; Wilson v. Horne, 37 Miss. 477.)
Accident and surprise and newly-discovered evidence as grounds for defendant's motion for new trial were intimately associated in their bearing upon the evidence, as is commonly the case. (1 Spell. New. Tr., 314.) The testimony of plaintiff as to the circumstances of signing the annulment of the lease was not foreshadowed by his pleadings, but was obviously provoked if not suggested by the awkward predicament in which he found himself under the various facts as they became revealed. A party's indirect testimony is not to be anticipated by his adversary. The facts shown by the motion for new trial were sufficient to demand the granting thereof. The new evidence proposed by the motion was not cumulative, nor impeaching in character. To disprove a party's own testimony upon a point in issue is never merely impeaching, and such evidence is cumulative only when relating to the same statements made at the same time and place as are proved by other evidence.
Objections that evidence is cumulative or impeaching merely do not apply to admissions of the adverse party nor to the evidence which possesses sufficient probative force to render a different result probable.
N. R. Greenfield, for defendaant in error.
The judgment should not be reversed upon mere probabilities. The facts were clearly and reasonably explained by the plaintiff and were all consistent with his claim as so explained. If there is any evidence which, standing alone or considered apart from opposing evidence, is, if believed by the jury, legally sufficient, or might reasonably tend to support the verdict, though such evidence may not be of an entirely certain and satisfying nature, it will not be disturbed. For, upon the mere weight of the evidence, the jury are the judges, and, though the evidence would not have satisfied the mind of the appellate court upon an original investigation, yet it will not sit to weigh conflicting testimony, and in support of the verdict the appellate court will consider evidence on behalf of the appellee in its most favorable light. (3 Cent. Dig., 3935-3938; Keyes v. Kimmel, 186 Ill. 109; Lonabaugh v. Morrow, 11 Wyo. 31; Bldg. Asso. v. Laramie, 10 Wyo. 54; Jackson v. Mull, 6 Wyo. 55; Rainsford v. Massengale et al., 5 Wyo. 1; Hood v. Smiley, id., 70; Hester v. Smith, id., 291.)
To warrant the granting of a new trial on the ground of either accident or surprise, it must appear: (1) That the mistake or accident was such that ordinary prudence could not have guarded against; (2) that the mistake was not due to ignorance of the law; (3) that the result would probably be different if a new trial is granted; (4) that the applicant made prompt complaint of the surprise; (5) that the misfortune could not have been averted by the introduction of other available testimony, by a continuance, or by a dismissal without prejudice. It was the duty of defendant below to come into court prepared to disprove the testimony of the plaintiff in support of his allegations. He cannot plead surprise at material and competent evidence, even though it be false. (Cases cited last above, and Taylor v. Stage Co., 6 Cal. 228; Bingham v. Walk, 128 Ind. 164.) And after discovering the loss of the letter now claimed to be material, defendant should have called the court's attention to it and asked for a continuance, or for leave to introduce secondary evidence of its contents. After speculating on the chances of a favorable verdict, he is not entitled to a new trial. .)
A party cannot be surprised at the non-attendance of witnesses whose attendance he has taken no steps to procure. (Huie v. Rogers, 54 Am. Dec., 300; Love v. Breeblove, 13 S.W. 222.)
Newly discovered evidence must comply with all the following rules in order to be sufficient ground for a new trial, to-wit: (1) It must be such as will probably change the result if a new trial be granted. (2) It must have been discovered since the trial. (3) It must be such as could not have been discovered before the trial by the exercise of reasonable diligence. (4) It must be material to the issue. (5) It must not be merely impeaching or contradicting the former evidence. A party fails to exercise due diligence if he fails to introduce evidence of an instrument known to be lost. (Quigley v. Birdseye, 11 Mont. 439; Chapman v. Moore, 107 Ind. 233; Wimpy v. Gaskill, 76 Ga. 41.) The fact of discovery and the showing of diligence must be made by the affidavit of the applicant, and not by his attorney. (Roziene v. Wolf, 43 Iowa 393; State v. McLaughlin, 27 Mo. 111; Cole v. Thornburgh, 4 Colo.App. 95; Russel v. Oliver, 78 Tex. 11; Arnold v. Skaggs, 35 Cal. 684; Brost v. Moore, 44 Minn. 470; State v. Soper, 148 Mo.; State v. Bussamus, 108 Iowa 11.) The discovery of the materiality or importance of proposed evidence does not render it newly-discovered, but simply discloses the negligence of the applicant.
This case was before the court on a motion to strike the bill of exceptions. That motion having been denied, the case is now here on the assignments of error. The defendant in error, who was plaintiff below, brought his action in the District Court of Carbon County against plaintiff in error, who was defendant below, to recover the balance due upon an alleged contract for work and services performed as foreman of defendant's cattle ranch in Carbon County, Wyoming, from May 1, 1900, to July 1, 1902, at the agreed price of fifty dollars per month. A verdict was returned in favor of the plaintiff and judgment was rendered thereon.
It is alleged in the amended petition that on May 1, 1900, the plaintiff leased from the defendant certain ranch property situate in Carbon County for the term of five years, and in pursuance thereof possession of the property was taken by the plaintiff on that day; that the agreement of lease was reduced to writing and signed by the parties on June 14, 1900; that there was leased at the same time the cattle and agricultural implements upon said ranch. It is further alleged that on or about July 30, 1900, the parties mutually agreed to annul the lease and did so annul the same by the execution of a contract endorsed upon or subjoined to said contract of lease in words and figures as follows:
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