Blake v. Royal Insurance, 133 Mo. App. 16

Blake v. Royal Insurance

133 Mo. App. 16 | Mo. Ct. App. | 1908

JOHNSON, J.

This suit is on a fire insurance policy issued by defendant to S. B. Hearsh, a merchant at Independence. Plaintiff is the trustee in bankruptcy of Hearsh. The policy in suit was for $2,000, and covered the stock of merchandise owned by Hearsh. The stock, valued in the petition and in the evidence of plaintiff at approximately $9,000, was destroyed by fire while the policy was in force. It is conceded that Hearsh had other insurance on the property to the amount of $4,500, and defendant alleges in its answer that it was procured “contrary to the terms and conditions of the policy sued on herein.” Another defense interposed in the answer is that the insured with the intent of cheating and defrauding defendant, shortly before the fire, removed the larger part of the stock from the place where it was insured and defendant denies that the property destroyed was of the value alleged in the petition. Evidence introduced by defendant tended to show that a large quantity of goods was *18removed from the store the day before the fire and that before this was done, the stock was worth only $4,500. This evidence is contradicted by that introduced by plaintiff. The issues of fact thus presented by the pleadings and evidence were submitted to the jury in instructions conceded to be free from error, and were decided by the jury in favor of plaintiff. One of the grounds on which defendant asked the court to grant a new trial is that of newly-discovered evidence, and the only error in the trial now claimed by defendant is the refusal of the trial court to sustain the motion for new trial on this ground. The neAvly-discovered witness was the agent of a commercial agency Avho called on Hearsh “some time before the fire,” to obtain a statement from him for use as the basis of a commercial report and rating. Hearsh declined to give the statement. A short time afterward, the witness (whose affidavit was filed-with the motion for a new trial) called at the store for the purpose of making an estimate of the value of the stock. Hearsh was absent from the store on this occasion and Avitness looked over the stock. He estimated the value at $4,000, and states that in his opinion the estimate was correct.

We perceive no good reason for saying that error was committed in overruling the motion. “The granting of new trials because of evidence subsequently discovered, rests for the most part with the trial court and any doubt as to whether the discretion vested in this regard in that tribunal has been soundly exercised, is to be resolved in favor of its ruling. It is only in a case entirely free from any element of uncertainty as to the impropriety of such ruling that appellate courts feel themselves called upon to interfere.” [Cook v. Railroad, 56 Mo. 380; State v. Sansone, 116 Mo. 1; State v. Morgan, 96 Mo. App. 343.] A new trial should not be granted on neAvly-discovered evidence which is *19merely cumulative. [Beauchamp v. Sconce, 12 Mo. 57; Dollman v. Munsun, 90 Mo. 85; Culbertson v. Hill, 87 Mo. 553.] “The rule of law is that the discovery of parol evidence to a point tried in the issue and upon which there was evidence is not sufficient to authorize the court to grant a new trial, because such a practice would inevitably lead to fraud, subornation, delay and vexatious uncertainty.” [Beauchamp v. Sconce, supra.]

The value of the goods being one of the issues contested in the evidence and sent to the jury, the newly-discovered evidence was but cumulative. Were we vested with the right to exercise the discretion vested by law in the trial judge, we would rule on the motion as he did. Certainly there is no ground for us to hold that he abused his discretion.

The judgment is affirmed.

All concur.