Sprague v. Sowash
| Decision Date | 17 June 1952 |
| Docket Number | No. 18306,18306 |
| Citation | 122 Ind.App. 519,106 N.E.2d 471 |
| Court | Indiana Appellate Court |
| Parties | SPRAGUE v. SOWASH et al. |
Wendell C. Hamacher, Crown Point, for appellant.
John R. Lynch, Crown Point, for appellees.
The sole question presented here is whether the trial court abused its discretion in not granting appellant a new trial by reason of newly-discovered evidence.
Appellees brought this action against appellant on an open account to recover the balance of $198.97 due for feed, grit, and poultry supplies sold appellant.
Appellant filed an answer under the Rules and a second paragraph alleging that the feed was not as represented; that it was not fit for the purpose for which it was sold. He also filed a counter-claim containing similar allegations and requesting damages in the amount of $250. Trial by jury resulted in a verdict and judgment in favor of appellee for the balance due on the account.
Appellant was the only witness to testify that the certain high energy or special feed was defective, unwholesome and unfit for the purpose for which it was sold. He testified to a feeding test administered to 535 chickens; that such chicks did not develop properly while other batches fed on other feed grew in a normal manner; that when he fed a portion of the 535 chicks a different feed they resumed development, but those which remained on the high energy or special feed did not. There were several contradictions in his testimony. Evidence was also introduced that the test conducted was not a valid one because of, among other things, the unsanitary conditions under which it was conducted.
Appellant requested that the State Chemist's Office test the special feed. A sample was taken and a report made to appellant. The report made showed the percentage of moisture, crude protein, crude fat, crude fiber maximum, ash, and nitrogen free extract, and that the percentage of crude protein and crude fat were above the guarantee. The report made no reference to the ingredients which made upon the test which were declared to be present by the manufacturer such as, for instance, alfalfa meal, corn meal or soybean oil meal.
Later appellant in a telephone conversation with an associate chemist in the office of the Indiana State Chemist stated that the feed contained raw soybeans. The associate chemist and miscroscopist examined the sample and notified appellant that it did not contain this ingredient.
The associate chemist testified that he had direct supervision of registrations and chemical work and feed control work; that two tests are made, a chemical test and an inspection by a microscopist; that the latter inspection showed the ingredients present which were declared to be present by the manufacturer; that the report made 'showed the ingredients on the tag, if it didn't it would show the notation that certain ingredients aren't identified or certain ingredients are identified;' that he supervised the analysis; that the report proves that the manufacturer had met his guarantee. He further testified that, 'you could have a feed with the same analysis that wouldn't be worth a cent, but with that list of ingredients you couldn't have.' Another expert testified that with these ingredients present the feed would be a good feed.
The affidavits supporting the motion for new trial state that after the trial appellant and his attorney interviewed the associate chemist and the microscopist; that affidavits were drawn for their signatures; that the microscopist verified an affidavit prepared for his signature as correct with the exception of one paragraph which was marked out with pen and ink, but refused to sign it. The microscopist did, however, sign an affidavit stating that he had no present recollection of examining the sample and that there is no laboratory record of his having done so. The associate chemist's affidavit states that he now finds the record does not show the sample to have been examined microscopically prior to the issuance of the report; that on a date after the issuance of the report and prior to the trial the sample was examined microscopically by himself and the microscopist, at which time raw soybeans was not found, no injurious substances were observed and no...
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New York Cent. R. Co. v. Sarich
...of newly discovered evidence are looked upon with distrust and disfavor and should be granted with great caution. Sprague v. Sowash (1952), 122 Ind.App. 519, 106 N.E.2d 471; Thompson v. Edmonson (1953), 123 Ind.App. 320, 110 N.E.2d 358; Ward v. State (1956), 235 Ind. 531, 135 N.E.2d The gra......
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Azimow v. Stoker
...executed by persons who had conversed with such witness about his testimony during the previous trial. The case Sprague v. Sowash, 1952, 122 Ind.App. 519, 106 N.E.2d 471, 473, well states the controlling factors in situations where it is alleged that a witness will change his testimony in a......
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Silver Fleet Motor Exp. Co. v. New York Cent. R. Co.
...(1942), 220 Ind. 354, 360, 41 N.E.2d 805; Koeneman v. Aldridge (1955), 125 Ind.App. 176, 184, 122 N.E.2d 345; Sprague v. Sowash (1952), 122 Ind.App. 519, 523, 106 N.E.2d 471. Error was assigned in the motion for a new trial claiming error when the court sustained the objection to a question......