Sisler v. Shaffer

• Decision Date: 13 November 1897
• Citation: 43 W.Va. 769,28 S.E. 721
• Court: West Virginia Supreme Court
• Parties: SISLER v. SHAFFER.

28 S.E. 721

43 W.Va. 769

SISLER

v.SHAFFER.

Supreme Court of Appeals of West Virginia.

Nov. 13, 1897.

Conduct op Trial — Evidence — Relevancy — New Trial—Newly-Discovered Evidence—Appeal—Review.

1. A party to a suit who testifies in his own behalf to a fact irrelevant to the issue in support of his own testimony, and prejudicial to is opponent, cannot object to its vontradiction on the ground of irrelevancy.

2. Whether either party may introduce newly-discovered testimony after a case has been once closed is a matter of sound discretion, which will not be reviewed, unless it has been clearly abused.

3. Newly-discovered evidence, merely cumulative, however apparently decisive, is not sufficient cause to justify setting aside the verdict of a jury.

4. This court will not disturb the verdict of a jury, founded on conflicting testimony approved by the trial court, unless the evidence, as a whole, clearly and plainly preponderates against such verdict.

(Syllabus by the Court)

Error to circuit court Preston county; J. Homer Holt, Judge.

Action by Joseph F. Sisler against Gus J. Shaffer. Plaintiff had judgment. Defendant brings error. Affirmed.

Neil J. Fortney and Henry Clay Hyde, for plaintiff in error.

P. J. Crogan, for defendant in error.

DENT, J. Writ of error from a judgment of the circuit court of Preston county in favor of Joseph F. Sisler against Gus J. Shaffer, for the sum of $289.52, with interest and costs. Defendant assigns the following errors, to wit: (1) That the witnesses Michael Lynch and James Wright were permitted to. testify as to separate purchases of them at other times and places not involved in the present suit; (2) that the defendant was not permitted to introduce newly-discovered evidence after the argument of counsel, but before the retirement of the jury; (3) that the verdict of the jury was not set aside on account of newly-discovered evidence, and because contrary to the law and the evidence.

The question of fact involved in this suit was as to whether the defendant, when he purchased a certain lot of lumber of the plaintiff, made known that, in making the purchase, he was acting as the agent of Bew & Co. Plaintiff testified that he did not do so. Defendant, on the other hand, testified to the contrary; and in support of his defense, while giving his testimony in chief, made the broad statement that at the time of the purchase in controversy he was not engaged in buying or shipping any lumber on his own account. To discredit the defendant's testimony, the court allowed the plaintiff, over the objection of the defendant, to introduce the witnesses Lynch and Wright, who testified that about the same time the defendant had purchased separate bills of lumber of them, and that they had or were about to sue him therefor. This was not a matter material to the Issue, about which the defendant ordinarily could be contradicted. His own evidence on the point was irrelevant, but, having introduced it in support of his evidence, the plaintiff had the right to contradict it. "A party who draws from his own witness Irrelevant testimony, which is prejudicial to the opposing party, ought not to be heard to object to its contradiction on the ground of its irrelevancy." 29 Am. & Eng. Enc. Law, 793, 794; State v. Sergent, 32 Me. 429. Strange cattle having wandered through a gap made by himself, he cannot complain. It was a question of sound discretion with the court as to whether the newly-discovered evidence should be permitted to go to the jury at the late stage at which it was offered; and this discretion was not abused, as the court could not permit it to be heard at that time without reopening the case, and it was improper to do so, unless the evidence was sufficient to justify setting aside the verdict, if one had been found before its discovery. To admit would have been equivalent to granting a new trial, as the plaintiff would have the right to have the case continued on the grounds of surprise. Hence this at once raises the question as to whether the newly-discovered evidence would justify the setting aside of the verdict. The defendant testified that at the time the purchase was made of the plaintiff he informed him that he was acting as the agent of Bew & Co. Stemple's evidence, newly discovered, would have fully corroborated defendant, and wholly related to that to which he had testified, and in all probability would have been sufficient to have defeated the plaintiff's action. Unfortunately, it comes strictly under the character of evidence called accumulative, and which, as has long been the settled law, is insufficient to sustain a motion for a new trial. Grogan v. Railway Co., 39 W. Va. 421, 19 S. E. 563; Halstead v. Horton, 38 W. Va. 727, 18 S. E. 953; Carder v. Bank,...