Vickers v. Phillip Carey Co.

• Decision Date: 13 July 1915
• Docket Number: 7014.
• Citation: 151 P. 1023,49 Okla. 231,1915 OK 557
• Parties: VICKERS v. PHILLIP CAREY CO.
• Court: Oklahoma Supreme Court

151 P. 1023

49 Okla. 231, 1915 OK 557

VICKERS v. PHILLIP CAREY CO.

No. 7014.

Supreme Court of Oklahoma

July 13, 1915

Rehearing Denied Oct. 12, 1915.

Syllabus by the Court.

While the statute provides (section 5037,Rev. Laws 1910) that where the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term at which the verdict is rendered, the application for a new trial may be made by petition filed in the original case, not later than the second term after the discovery, and in no event later than one year after final judgment was rendered, yet, where the ground of the petition is newly discovered evidence, such applications are as a general rule viewed with disfavor by the courts.

The law authorizing the granting of new trials upon the ground of newly discovered evidence, does not contemplate that such new trials shall be granted where the newly discovered evidence is merely cumulative.

"Cumulative evidence," in the law governing the granting of new trials, is additional evidence of the same kind and to the same point as that given on the first trial, but it is not cumulative if it relate to distinct and independent facts of a different character, though tending to establish the same ground of claim or defense.

A rule of wide recognition regarding the granting of new trials on the ground of "newly discovered evidence" exacts that the evidence fulfill the following requirements: (1) It must be such as will probably change the result if a new trial be granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative to the former evidence; (6) it must not be to merely impeach or contradict the former evidence.

Where the newly discovered evidence tends only to strengthen other evidence of the same kind to the same point, and is impeaching in its character, and is not such as would probably change the result if a new trial were granted, it is error, calling for a reversal, for the trial court to set aside the verdict of the jury and grant the moving party a new trial.

Where the court grants a new trial on a petition filed after the term at which judgment was rendered, on the ground of newly discovered evidence, and in doing so disregards the established rules of law, its action presents a question of law reviewable on appeal.

Additional Syllabus by Editorial Staff.

The phrase "discretion of court," as applied to granting and denying new trials, means a legal discretion, to be exercised in discerning the course prescribed by law according to principles ascertained by adjudged cases.

Error from Superior Court, Oklahoma County; Edward Dewes Oldfield Judge.

Action by Arthur A. Vickers against the Phillip Carey Company.From an order setting aside a verdict and granting defendant a new trial, plaintiff brings error.Reversed and remanded, with instructions.

John R Guyer and Robert A. Rogers, both of Oklahoma City, for plaintiff in error.

Keaton Wells & Johnston, of Oklahoma City, for defendant in error.

SHARP J.

The present action was instituted by the plaintiff in the court below on the 19th day of September, 1911, to recover damages on account of personal injuries alleged to have been sustained by him in falling from the roof of a barn being constructed by one Johnson and the defendant, Phillip Carey Company, for the use of the State Agricultural and Mechanical College, at Stillwater, Okl., on the 7th day of July, 1910.The case came on for trial on May 23, 1912.A motion for judgment on the pleadings was sustained by the trial court, and, no application to amend the petition being made, judgment was entered for the defendant for its costs.Thereafter, new counsel being employed in said action, a motion was made to vacate and set aside the judgment of the court, which motion was thereafter amended, and, at a subsequent term of the court, was sustained.Defendant prosecuted error to this court, where the order of the court vacating the original judgment was affirmed.Carey Co. v. Vickers,38 Okl. 643, 134 P. 851.On October 20, 1913, said cause again came on to be heard in the superior court, resulting in a verdict in favor of plaintiff in the sum of $6,500.Within three days thereafter a motion for a new trial was filed by defendant, one of the grounds thereof being newly discovered evidence of one Harry Reed.Thereafter a hearing was had on said motion, at which testimony was heard, and the deposition of Harry Reed introduced in evidence.The motion was overruled, and an extension of time granted defendant in which to make and serve a case-made for appeal.On the 30th day of January, 1914, defendant filed its petition for a new trial on the ground of newly discovered evidence of one J. H. Miller, who, it was said, was a witness to the accident sustained by plaintiff.It was charged in this petition that:

The evidence of said Miller "is not wholly cumulative, but is newly discovered, material to its defense of said above-entitled action, and which it could not, with reasonable diligence, have discovered and produced at the trial thereof, nor at the term of court at which the verdict of the jury and the judgment based thereon was rendered."

The petition for a new trial came on to be heard on May 19th following, and, after defendant had introduced in support thereof a part of its evidence, it was granted leave to file an amended petition for a new trial on the ground of newly discovered evidence of one M. L. Sanders.A continuance was thereupon granted plaintiff, and the petition as amended again came on for trial on June 8, 1914, at which time, and after hearing had, the court set aside the verdict of the jury and granted the defendant a new trial.From that order the present appeal is prosecuted.

The petition for a new trial was filed under authority of sections 5035,5037,Rev. Laws 1910.While "newly discovered evidence," material to the party applying, which it could not with reasonable diligence have discovered and produced at the trial, is ground for a new trial, applications therefor founded on such evidence are not favored in law.Arnold v. Skaggs,35 Cal. 684;Tilley v. Cox,119 Ga. 867, 47 S.E. 219;Zimmerman v. Weigel,158 Ind. 370, 63 N.E. 566;Canfield v. City of Jackson,112 Mich. 120, 70 N.W. 444;Lampsen v. Brander,28 Minn. 526, 11 N.W. 94;Moore v. Coates,35 Ohio St. 177;Wheeler v. Russell,93 Wis. 135, 67 N.W. 43;Westonv. N.Y. El. R. Co., 42 N.Y. Super. Ct. 156;Liberty v. Burns,114 Mo. 426, 19 S.W. 1107, 21 S.W. 728.Such applications are regarded with suspicion, and should be examined with caution.14 Enc.Pl. &Pr. 790.In an early decision (Berry v. State,10 Ga. 511), the rule was announced that a new trial would not be granted on a mere showing that new evidence had been discovered.Such evidence, it was said, in order to be sufficient, must meet the following requirements: (1) It must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative to the former evidence; (6) it must not be to merely impeach or contradict the former evidence.This rule is one that is now in force in a large majority of the states, and has in some jurisdictions been incorporated into the statutes or codes of procedure.14 Enc.Pl. &Pr. 791;Graham & Waterman on New Trials, p. 1021.

Passing the objections to the sufficiency of the petition, and the questions of diligence and practice, we will examine into the character of the newly discovered evidence and the change in the result that it would probably bring about in the event of a new trial.Plaintiff in his amended petition, among other things, charged that it was the duty of the defendant company to furnish and provide the plaintiff with fit, suitable, and safe ropes, apparatus, and appliances, for the completion of the work and erection of the scaffolding, and did furnish him with two ropes and directed and ordered that he use the same in and about the erection of the scaffolding on the barn roof; that the said ropes were defective, which fact was unknown to plaintiff, and could not have been discovered by him on account of the ropes being covered with a coat of paint, which concealed the defects therein; and that the injuries sustained by plaintiff were occasioned by the breaking or parting of one of the ropes, thereby causing the plaintiff to fall to the ground from the roof of the barn.On the part of the defendant company, it was contended that, if any injuries were sustained by plaintiff, the proximate cause thereof was his own negligence directly contributing thereto, in that he constructed or supervised the construction of the platform on which he was standing at the time in a careless, negligent, and unsafe manner, and without providing proper and safe supports therefor.Around these contentions of the parties the testimony centered, and, at the conclusion of the trial, the following special interrogatory was submitted to the jury:

"Do you find that the plaintiff's injuries were caused by the breaking of one of the ropes holding the scaffolding and on which he was standing at the time of the fall, or by breaking or parting of a portion of the scaffolding itself?"

And to which the jury through their foreman answered, "We, the jury, find that the rope broke," thus specifically refusing to accept the theory of the defendant that the injury was caused by a breaking...