216 Miss. 844 | Miss. | 1953
Appellant brought suit for damages against appellee for the destruction by fire of an International tractor which had been rented by him to appellee for use by it in moving lumber on its mill yard at Bond, Mississippi. Suit was filed on December 23, 1950, and process issued directed to the Sheriff of Lauderdale County for service. A copy was served on appellee’s secretary on December
Appellant’s first contention is that the trial court erred in setting aside the judgment by default and he asks that the same be reinstated. In Turner v. Williams, 162 Miss. 258, 139 So. 606, we held that a summons to appear on a past date is void and that the court acquires no jurisdiction of the person of the defendant under such a summons. It is our conclusion that appellant’s contention is without merit.
It is next contended that the trial court erred in granting the peremptory instruction requested by defendant because the evidence presented a question for the jury as to whether the defendant was guilty of negligence proximately contributing to the fire which destroyed the tractor. The declaration charges in general terms that the fire which destroyed the tractor resulted from the negligence of appellee in permitting fire hazards to exist around the mill and in failing to provide the proper equipment with which to fight a fire. In this case it was shown without dispute that the tractor was rented to appellee for use on the mill yard for a daily rental of $2.50. The relation of bailor and bailee existed between the parties. In Y & M V R R Company v. Hughes, 94
After the trial of the case and before the adjournment of court appellant filed a motion for a new trial on the ground of newly discovered evidence. This motion was sworn to by both the appellant and his attorney and'' showed that they had both been diligent in their investigation of the facts surrounding the fire and in their search for evidence and that at the trial they presented all of the facts which they had been able to ascertain. It further showed that since the trial they had learned by voluntary disclosure of two witnesses additional evi
We feel that the testimony above detailed was sufficient to make an issue for decision by a jury as to whether appellee was guilty of negligence which proximately caused the fire, and that a jury would he warranted in finding from this evidence that it was reasonably probable that the fire originated from the hazardous situation described. In the case of Redmond v. Marshall, 162 Miss. 359, 363-364, 137 So. 733, this Court said: “A party asking for a new trial on the ground of newly discovered evidence must satisfy the court that the evidence had come to his knowledge since the trial, and that it was not owing to a want of diligence on his part that it was not discovered sooner; and he must go further, and show that the new evidence would probably produce a different result if a new trial were granted. (Citing numerous authorities.) Newly discovered evidence which is merely cumulative, or which tends to impeach one or more witnesses, is not ground for a new trial; and evidence of the same kind as that already given, to the same point, is cumulative, and not merely corroborative.” (Citing authorities.)
The motion here shows that the proffered evidence had come to the knowledge of appellant and his attorney since the trial and that it was not owing to a want of diligence on their part that it was not discovered sooner. The proffered evidence was not of the kind already given and was neither cumulative nor corroborative of what had been shown at the trial of the case. It was in support of the charge of negligence laid in the declaration and was wholly different from what had been shown at the trial. "We fully recognize, as stated in the case of Dement v. Summer, 175 Miss. 290, 165 So. 791, that a motion for
Reversed and remanded.
ON MOTION TO CORRECT JUDGMENT AND ON SUGGESTION OP ERROR
Appellee has filed a motion to correct the judgment heretofore entered in this cause, setting up as a basis that Archie Fairley, one of the two newly discovered witnesses on account of whom this Court held in the original opinion (24 Adv. S. 1, 63 So. 2d 405) that a new trial should have been allowed, has died, and that his testimony, not having been perpetuated, will not be available on a new trial. Although his indicated testimony was of considerable weight in the decision of this case, and appellant may possibly be unable to prove essential facts on a new trial without him, yet we do not feel justified in modifying our original judgment on account of his death. We decided the case on the record submitted to us, and considered the rulings of the
Referring now to the suggestion of error, we find that appellee takes exception to the following language in the opinion: ‘ ‘ There was a disputed question of fact as to whether appellee required appellant to leave the tractor under the mill shed. Assuming that appellee made this requirement . . .” Appellee contends that there was no proof that appellant was required to leave the tractor at the mill at night, and therefrom argues that there was no relation of bailor and bailee. If we should agree with appellee that appellant was free to remove the tractor from the mill premises after working hours, nevertheless it would not follow that our original decision was wrong. We held that appellant should have a new trial, based on newly discovered evidence, because it was our view that such evidence, as disclosed in the affidavits, would probably be sufficient to make a jury issue of negligence as the proximate cause of the destruction by fire. In our opinion, proof of such negligent burning would take plaintiff’s case to the jury, whether or not he had the privilege of removing the tractor at night if he wished to do so.
Motion to Correct Judgment overruled; and Suggestion of Error overruled.