Turner v. Southern Ry. Co

• Decision Date: 17 August 1922
• Docket Number: (No. 10985.)
• Citation: 113 S.E. 360
• Parties: TURNER. v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

113 S.E. 360

TURNER.

v.SOUTHERN RY. CO.

(No. 10985.)

Supreme Court of South Carolina.

Aug. 17, 1922.

Appeal from Greenwood County Court; C. C. Featherstone, Judge.

Action by M. W. Turner against the Southern Railway Company. Judgment for plaintiff, and from an order denying defendant's motion for a new trial because of newly discovered evidence, it appeals. Reversed, and new trial ordered.

Bonham & Price, of Greenville, for appellant.

Tillman, Mays & Featherstone, of Greenwood, for respondent.

MARION, J. On January 23, 1922, plaintiff recovered a verdict in the Greenwood county court for $2,000 on account of injuries to his automobile sustained in a crossing collision, April 13, 1921. A motion for a new trial on after-discovered evidence was made by defendant on March 23, 1922. From order of Hon. C. C. Featherstone, county judge, refusing the motion, defendant appeals.

The plaintiff, W. M. Turner, testified on the trial as follows:

"Q. Where did you buy the car? A. In Laurens.

"Q. What did you pay? A. $3,150.

"Q. Did you buy it new? A. Yes, sir."

Defendant upon the hearing of the motion for a new trial submitted the sworn statement of P. B. Irby, as follows:

"In May, 1920, I sold a Paige automobile to M. W. Turner, of Greenwood, S. C, for $2,350.

* * * I bought this auto that I sold to Mr. M. W. Turner from G. W. Canfield, at Greenwood, S. C, in February, 1920, for $2,250, and kept it until I sold it to Mr. Turner."

A counter affidavit of M. W. Turner, the plaintiff, presented at the hearing, contained the following:

"Deponent further says that he was a witness at the trial of the said cause, and that he did not understand at any time the attorney for the defendant to ask him what he paid for the said car. His understanding of the question asked him was what the list price of the car was, or what the cost price of the car was.

* * * The automobile was obtained from a Mr. Irby in Laurens, and that it was paid for by deponent taking up a note of Mr. Irby's at the bank and paying Mr. Irby a certain sum in cash, * * * and deponent's recollection isthat the automobile cost him when he bought it between $2,500 and $2,600, " etc.

It thus clearly appears that the plaintiff, whether through mistake or otherwise, testified on the trial that he had paid $3,150 for the car, when according to Irby he had only paid $2,350, and according to his own admission in the affidavit submitted at the hearing he had not paid more than between $2,500 and $2,600. The defendant offered no evidence upon the issue of damages. That issue, therefore, went to the jury upon a false or erroneous statement of a material fact by a party to the cause. In estimating the amount of damages, the purchase price of the car 11 months before the accident was of primary importance; the jury's finding of $2,000 indicating an estimate of at least $1,000 depreciation from the alleged purchase price of $3,150.

The county judge in a well-considered order disposing of the motion for a new trial, found (1) that the new evidence was discovered after the trial, ' and (2) that defendant was entitled to the benefit of any doubt that such evidence would have probably changed the result by reducing the amount of the recovery, but concluded (3) that the defendant had failed to show that the evidence could not have been discovered before the trial by the exercise of due diligence. His refusal of the motion was expressly predicated upon this ground:

"There must be an end of litigation and a litigant is not entitled to his two days in court without making a clear showing as to the exercise of diligence."

The rule is well settled that in law cases this court has "no Jurisdiction to review orders granting or refusing new trials, when they are based upon or involve the decision of questions of fact, unless...