Ohme v. Bisimanis, 3 Div. 942.

• Citation: 222 Ala. 262,132 So. 161
• Decision Date: 22 January 1931
• Docket Number: 3 Div. 942.
• Parties: OHME ET AL. v. BISIMANIS.
• Court: Alabama Supreme Court

132 So. 161

222 Ala. 262

OHME ET AL. v. BISIMANIS.

3 Div. 942.

Supreme Court of Alabama

January 22, 1931

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action for damages for personal injuries by Dennis Bisimanis against Rudolph Ohme and Harry E. Ohme. From a judgment for plaintiff, defendants appeal.

Reversed rendered, and remanded.

Rushton Crenshaw & Rushton, of Montgomery, for appellants.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

BOULDIN J.

The action was for alleged personal injury to plaintiff, a pedestrian, charged to the negligence of defendants in striking him with an automobile at the intersection of Adams and Court streets in the city of Montgomery.

The injury complained of was a double hernia resulting from such collision. There was verdict for plaintiff.

Defendants moved for a new trial. Ground No. 3 of said motion reads:

"On account of newly discovered evidence, material to the defendants, which defendants could not with reasonable diligence have discovered and produced on the trial."

The alleged injury was received October 30, 1929. Trial was had on January 30, 1930. Motion for new trial filed February 15, 1930. On the hearing of the motion for new trial, March 15, 1930, movant filed an affidavit of counsel, saying:

"That on, to-wit, the 17th day of February, 1930, Dr. Harry E. Ohme, one of the defendants in the case of Bisimanis v. Ohme, came to his office and told him the following:

"That the said Dr. Harry E. Ohme's brother had recently informed him on, to-wit, Saturday, February 15, 1930, that a patient of his said brother, told him the following facts:

"That upon the date of the trial of the said above mentioned cause he, the said patient, was in the Olympia Cafe in this city; that there were several others in the restaurant at the time and that one Gus, a Greek, who works at the said cafe, asked him the result of the Bisimanis v. Ohme case; that the patient did not know himself at that time the result of the case but informed Gus, to see what he would remark, that the jury had given Bisimanis $10,000; that thereupon the said Gus stated, among other remarks, that he was a room-mate of Bisimanis before Bisimanis married; that Bisimanis had been ruptured for a long time before he married and before the time of the said accident, which he claimed caused the said rupture; that he, Gus, had been with Bisimanis to Dr. T. Brannon Hubbard's office where Bisimanis was examined by the said Dr. Hubbard for the said ruptures;

"This is the first information affiant had of any of these facts; that thereupon affiant interviewed the said Dr. T. Brannon Hubbard who informed affiant that he examined Dennis Bisimanis on March 25, 1929, and at that time Bisimanis had a double hernia, one on each side, and further informed affiant that his records substantiated this statement; that affiant, together with the said Dr. Hubbard, examined Dr. Hubbard's records and found this to be true;

"That this evidence is material for the defendants in this cause and that defendants, nor their attorneys could have with reasonable diligence discovered and produced the said evidence at the trial."

The record then recites:

"The following stipulation was entered into between counsel for the plaintiff and counsel for the defendants:

"'It is hereby agreed between the parties that if Dr. T. Brannon Hubbard were present and testifying upon the motion for the new trial he would testify that the records in his office show that he examined one Dennis Bisimanis in his office on March 25, 1929, and that on his examination upon that date he found that Dennis Bisimanis was suffering from double hernia, and that he advised an operation; that he has no independent recollection of these matters."'

There was sharp conflict on the main trial as to whether the car actually came into contact with the person of plaintiff. His evidence tended to show...