Wiegand v. Lincoln Traction Company
| Decision Date | 23 September 1932 |
| Docket Number | 28321 |
| Citation | 244 N.W. 298,123 Neb. 766 |
| Parties | REINHOLD WIEGAND, APPELLEE, v. LINCOLN TRACTION COMPANY, APPELLANT: WESTERN UNION TELEGRAPH COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: ELWOOD B CHAPPELL, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. It is provided in section 20-1109, Comp. St. 1929, that a jury during its deliberations may, at the discretion of the trial judge, be permitted to separate temporarily during the night. This is a salutary provision for the comfort of the jury, and the district judge was right in directing it to be done.
2. By direction of the trial court, there is clearly set out in the bill of exceptions all communications received by the trial judge from the foreman of the jury during its deliberations, the formal remarks made by counsel and the court relating to requests for reading of evidence. This procedure is commended.
3. In cases where a motion for a new trial is necessary and proper, it is sufficient to confer jurisdiction upon this court if the required transcript is filed within three months from the overruling of such motion for a new trial.
4. Section 20-1214, Comp. St. 1929, provides that a witness may be interrogated as to his previous conviction of a felony, and that a record thereof may be introduced.
5. Under such section, if testimony of a witness given at a first trial is, in his absence from the state, read in evidence at a second trial, it is not error for the trial court to permit a certified record of his conviction of a felony to be received in evidence, although such conviction occurred 14 months after he originally gave such testimony, if his conviction occurred four months previous to the time when the evidence is read to the jury.
6. It is a presumption of law that a verdict is right, and motions for new trial on the ground of newly discovered evidence are usually overruled, but are granted in exceptional cases.
7. To make a sufficient showing on such a ground, the proof should show that neither litigant nor his counsel could have discovered the evidence by exercise of due diligence; that the new facts are not only competent, relevant, material and contradictory, but that they render clear and positive that which was before equivocal and uncertain, and are of such a trustworthy character as will probably bring about a different result in case a new trial is granted.
Appeal from District Court, Lancaster County; Chappell, Judge.
Action by Reinhold Wiegand, by Adam Wiegand and another, his parents and next friends, against the Lincoln Traction Company, impleaded with the Western Union Telegraph Company, and others. Judgment for the plaintiffs, and the defendant first named appeals.
Reversed, and a new trial ordered.
Leonard A. Flansburg, George A. Lee and John O. Sheldahl, for appellant.
Sanden, Anderson & Gradwohl, contra.
Heard before GOSS, C. J., ROSE, DEAN, EBERLY and PAINE, JJ., and BEGLEY and BLACKLEDGE, District Judges.
The plaintiff, who was a Western Union messenger boy, brought this action for personal injuries suffered by him when, in riding his bicycle east on O street in Lincoln on Armistice Day, 1929, he was crushed between an automobile and a street car. A verdict was returned against the Lincoln Traction Company, and, upon the overruling of the motion for a new trial, it was brought to this court.
This is the second appearance of this case in this court. The first opinion was entered April 24, 1931, and can be found in 121 Neb. 130. This first opinion, which states the facts briefly, reversed the district court for directing a verdict for the defendants, and held that the issues of negligence and contributory negligence should have been submitted to the jury.
1. Upon a retrial of the case, the jury returned a five-sixths verdict for the plaintiff upon October 3, 1931, and a judgment thereon was entered the same day, as provided by section 20-1313, Comp. St. 1929, and approved in Crete Mills v. Stevens, 120 Neb. 794, 235 N.W. 453. The record discloses that the jury were instructed to deliberate until 10:00 p. m. in the evenings, and then were excused by the court until 9:00 a. m. the following mornings, when they returned into court, answered roll call, and continued deliberating, as provided in section 20-1109, Comp. St. 1929, which salutary provision is recommended for the purpose of giving the jury a night's rest.
2. The record also discloses that communications to the judge from the foreman of the jury were at once directed by the court to be marked as exhibits and made a part of the record, and formal entries made at the court's direction of such requests for the reading of testimony and the remarks of counsel making no objection thereto, and all statements of the foreman of the jury and the court were recorded, for it is generally understood that any communication between the judge and the jurors after they have retired to deliberate are improper except such as are made in open court. 20 R. C. L. 257. The full record is shown of exactly what procedure was followed each time the jury were called back into the room during their deliberations. This formality on the part of the trial judge is to be commended to the end that no unauthorized communications be had by or with jurors. 20 R. C. L. 255; Hopkins v. Bishop, 91 Mich. 328, 51 N.W. 902; Taulborg v. Andresen, 119 Neb. 273, 228 N.W. 528.
3. Upon October 5, 1932, a motion for a new trial was filed, and upon October 16 a supplemental motion for a new trial was filed, based upon new evidence to be given by newly discovered witnesses, as set out by the affidavits of the defendant's attorneys engaged in the trial of the case, as well as in the affidavits of the new witnesses, whose evidence was also taken in the form of depositions in the case of two witnesses. Draper v. Taylor, 58 Neb. 787. Upon December 28 the motion for a new trial was overruled, and on December 31 notice of appeal was given, and upon March 1, 1932, praecipe was filed in this court, setting out in the printed portion thereof that it was an appeal from a judgment entered October 3, 1931, some five months previously. Appellee therefore contends that, more than three months having elapsed from the date of the judgment, no issue is presented to this court by this appeal.
It may be admitted that section 20-1912, Comp. St. 1929, does so provide, but there is also in the same section the provision, "or within three months from the overruling of a motion for a new trial in said cause."
In the case relied upon by the appellee, Huffman Automobile Co. v. Moline Plow Co., 110 Neb. 279, 193 N.W. 747, the appeal was dismissed because it was not filed until some four months after the date of the entry of the judgment, and while it was filed within three months of the overruling of the new trial, as it was in the case at bar, yet this fact could not avail to save the appeal, for a motion for a new trial was held improper, as there was no trial of an issue of fact upon the pleadings. Horton v. State, 60 Neb. 701, 84 N.W. 87; Algermissen v. Crete Mills, 118 Neb. 72, 223 N.W. 461; Bowers v. Raitt, 96 Neb. 460, 148 N.W. 93; Payne v. Garth, 285 F. 301; Dodge v. Healey, 103 Neb. 180, 170 N.W. 828; Clapper v. Putnam Co., 70 Okla. 99, 158 P. 297.
In the case at bar, the transcript having been filed within three months of the overruling of the motion for a new trial, the court has jurisdiction to pass upon all errors presented by such ruling.
4, 5. The appellant sets out as prejudicial error the ruling of the trial court in admitting a record of the conviction of Sidney M. Graham, principal witness for the defendant at the first trial.
The evidence in reference to this contention will be briefly set out. This witness was an employee of Woods Brothers Company, entirely disinterested in the case, and was standing in a safety zone a short distance ahead of the approaching street car, waiting to become a passenger upon the particular street car involved in the accident. He was perhaps in the best position of any person to see exactly what happened at the moment of the accident. He watched the street car and the automobile travel parallel just before the accident. He testified that the messenger boy, going faster than either, attempted to pass between them. He saw him caught in the wedge-shaped triangle as the automobile swerved towards the street car. This testimony was given by him at the first trial upon March 27 and 28, 1930. Upon September 30, 1931, while examining witnesses for the defendant, Judge Flansburg made this statement: "I make the statement in the record that Mr. Sidney Graham was last in Des Moines, Iowa, and is now outside of the state and outside of the jurisdiction of the court so he can't be subpoenaed, and we offer in evidence his former testimony, the testimony given in the former trial." There was no objection, and the same was read from the bill of exceptions by Judge Flansburg.
The plaintiff, for the purpose of impeaching this testimony, so read to the jury, introduced in his rebuttal two sections from the Code of Iowa, showing that the false drawing of checks was a felony, and then introduced a certified copy of an indictment and a plea of guilty entered by said Sidney M. Graham upon May 20, 1931, of uttering a false check drawn upon the Omaha National Bank for $ 50, and of his sentence to the county jail for 60 days. It will be seen that the sentence took place some 14 months after he was sworn at the first trial and gave the evidence read at the second trial, but took place some four months prior to the time of the trial at which this former testimony was read.
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