Southern Ry. Co. v. Elder
| Decision Date | 10 January 1916 |
| Court | Mississippi Supreme Court |
| Parties | SOUTHERN RY. CO. v. ELDER |
October 1915
APPEAL from the circuit court of Tishomingo county. HON. CLAUDE CLAYTON, Judge.
Suit by W. C. Elder against the Southern Railway Company. Judgment for plaintiff, and on motion for new trial overruled defendant appealed.
Appellee brought suit against the appellant in an action of conversion. He alleges that he delivered certain cattle to the appellant for transportation, and the appellant failed to deliver them at the point of destination or to turn them back to appellee. He recovered judgment in the circuit court. Afterwards appellant filed a motion for a new trial on the ground of newly discovered evidence, and filed affidavits in support of the motion, which set out that appellant could show by affiants that the cattle which appellee claims were shipped over appellant's road had been sold by appellee to another party prior to the date of shipment. Appellant also alleges that his failure to procure this evidence at the trial was due to the fact that he was taken by surprise on the trial, for the reason that appellee had testified about cattle not referred to in his declaration. The court overruled the motion for a new trial, and an appeal is prosecuted.
Reversed and remanded.
Lamb & Warriner, for appellant.
We think the trial court erred in overruling our motion for a new trial in view of the testimony that the appellant can now produce and that the same was an abuse of discretion on the part of the trial court.
In the case of Vanderburg v. Campbell, 64 Miss. 95, this court says: "The discretion exercised in granting a new trial is governed by legal rules rather than by mere will or pleasure of the judge."
We are familiar with the rule that only in exceptional cases will a new trial for newly discovered evidence be granted when the same is cumulative, but we submit to the court that the evidence as set out in the motion for a new trial is not cumulative, but is entirely newly discovered evidence on an entirely different point to what the appellant had cause to believe it had to meet from the declaration of appellee.
In the language of the court in the case of Insurance Co. v Betbeze, 98 Miss. 265, in which it says "on the whole record we think the court should set aside the verdict and grant a new trial. "Now, to say the least of it, the contention of the appellee in this case is very, very unreasonable and does not look right; as stated before there is something wrong in this case. Now, the testimony offered in support of the motion for a new trial will shed an entirely different light on this transaction, and we feel safe in saying will result in a verdict for appellant.
We do not think it can be contended that the evidence offered in support of the motion for a new trial, is cumulative, for cumulative evidence is evidence on some point put in issue which has already been testified to. The point as to whether or not Elder had the carload of cattle at Latham's pasture on the 17th day of February, as he contends, is the governing point in this case, and one which appellant had no way to know would be testified to by Elder until the same was done on the witness stand. Now, the gist of this action is did Elder have the cattle at Latham's pasture? If he did not, then he did not turn the cattle over to the appellant. The evidence offered by the appellant on the part of Coyle endeavored to show that Elder did not have the cattle.
This court in the case of Williams v. State, 99 Miss. 276, says: "Evidence which would tend to establish the disputed fact by other circumstances is not cumulative, but corroborative."
The evidence in this case is bound to be unsatisfactory to this court and the real issue in this case must be left in doubt as the record now stands. The question then is, will the newly discovered testimony on...
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