78 Neb. 707 | Neb. | 1907
These appeals are a continuation of the litigation involved in Citizens Ins. Co. v. Herpolsheimer, 77 Neb. 232. There a judgment against each of the insurance companies was affirmed. The opinion referred to will assist to an understanding of the questions involved at this time. The judgments reviewed in those proceedings were rendered by the district court on the 8th day of April, 1905. On the 12th of April, 1906, the insurance companies each filed a petition for a vacation of the respective judgments, and for new trials, under the provisions of section 602 of the code. The petitions charge that the judgments were procured by wilfully false testimony given on the trial of the three cases by the judgment plaintiffs, whom we shall hereafter refer to as the Herpolsheimers. It is also alleged in the petitions that the insurance companies had no knowledge of any witness by whom such testimony could be contradicted and shown to be false, until long after the term at‘which the judgments were rendered, and about two months before filing their petitions. The answers are voluminous, and it will suffice for present purposes to say that they put in issue the charge of perjury, and state a legal conclusion, to the effect that the delay of two months on the part of the insurance companies in filing their petitions after the discovery of the witness by whom they could show the alleged falsity of the testimony of the Herpolsheimers constitutes laches. The insurance
The testimony given by the Herpolsheimers at the original trial, and now relied upon by the insurance companies as a basis for the charge of perjury, was Avith respect to two items: (1) The number of buggies totally destroyed by fire; and (2) the extent of the damage to certain binding twine.
As to the first item, two of the Herpolsheimers at the original trial testified that 81 buggies were totally destroyed. Their testimony on that point sIioavs that they arriAred at that number by taking the whole number of buggies shown by their last inventory, taken some nine months before the fire, adding thereto such additions to their stock as Avere shown by subsequent invoices, deducting therefrom the number shoAvn by their account of sales to have been sold subsequently to the talcing of the invoice, and subtracting from the result the number of buggies which were only partially destroyed by the fire. On the trial of these applications, the insurance companies produced a witness, who had been employed by the Herpolsheimers in and about the building where the buggies Avere destroyed for a period of about four months preceding the fire, and Avho had continued in their employ for about four weeks thereafter. He testified that about three months previous to the ■ fire he had counted the whole number of buggies in stock for the purpose of listing them for assessment, and that the whole number then on hand was 64; that he knew the number of buggies sold between that time and the- date of the fire, the number added to the stock between those dates, and the number that were only
As to the second item — the damage to the binding twine —that was a subject of expert testimony on the trial of the cases on their merits. The twine was not consumed by the fire, but was damaged by the water used to extinguish the fire. A considerable amount of testimony was adduced at that time to the effect that binding twine is of no value after it has been wet. Two of the Herpolsheimers testified to that effect, and that all of the twine got wet by the water used to extinguish the fire and was thereby rendered worthless. On the trial of these applications, the insurance companies produced a witness — the one who testified on their behalf with respect to the buggies — who testified, in effect, that a considerable portion of the twine had not been damaged, and it is conceded that after the judgment sought to be vacated by these proceedings the Herpolsheimers sold the twine in question for $308, or a trifle more than one-third of what they .claimed was its value before the fire. So far as the testimony of this witness, to. the effect that a portion of the twine was not damaged, is concerned, it will not be seriously claimed that it is so convincng that it necessitated a finding that the testimony of the Herpolsheimers was faise, or that a finding contrary thereto is not supported by sufficient evidence. But counsel lay great stress on the fact that the twine was afterwards sold for a substantial sum, and seem to regard that fact as a demonstration of the falsity of the testimony of the Herpolsheimers. We think it falls far short of demonstrating anything of the kind. At the original trial, all the parties proceeded on the theory that the damage to the twine was a matter calling for the opinion of experts. They submitted the cases on that theory. There is nothing to indicate that the Herpolsheimers, or any of the witnesses for that matter, gave any other than their honest opinions. It does not even demonstrate that the Herpolsheimers were mistaken in their opinions, because the record does not inform us as to the amount of
With the question of perjury eliminated from the case, the only question presented by the evidence is whether the insurance companies made such a showing as would entitle them to new trials on the ground of newly discovered evidence. The evidence shows that they, or their attorneys, first learned that the witness, who testified on the hearing of these applications with respect to the number of buggies destroyed and the damage to the binding twine, knew certain facts material to the case near the close of the trial of th'e cases on their merits, which lasted about a week. But the time they discovered this particular witness is immaterial. The question presented by an application of this kind is whether they used due diligence to ascertain the facts disclosed by his testimony. The record shows that the second day after the fire the adjuster of the insurance companies went to the city where the loss occurred and, in company with two of the Herpolsheimers, examined the ruins. Within four days he made a second visit to the city, and again, in company with the Herpolsheimers, visited the ruins, and looked over such portions of the stock as could be examined at that time. On that occasion they submitted to him an inventory of the property destroyed and damaged by the fire. This inventory sIloavs 32 buggies totally destroyed. (It was afterwards discovered that there was a mistake of one buggy, and at the trial the Herpolsheimers only claimed a total loss of 31 buggies.) On his second visit there was some controversy between him and the Herpolsheimers with respect to the number of buggies totally
In an application for a new trial on the ground of newly discovered evidence, the statute requires that the application should show that the newly discovered evidence could not, with reasonable diligence, have been discovered and produced at the trial. Code, sec. 318. A litigant cannot expect to discover evidence without effort or inquiry. Due diligence requires that he should make some effort to obtain it, and not wait for those having knowledge of the facts to give information unasked. As was said in Secord v. Powers, 61 Neb. 615: “It is not the policy of the law to encourage actions of this kind. There must be an
Complaint is made of the ruling on the demurrer to the so-called plea of laches. That ruling excluded no evidence, and interfered in no way with a full and complete showing-on the part of the companies. Their failure to show due diligence was signal and complete, and of itself necessitated a finding and judgment against each of them. In other words, the judgments rendered on the applications are the only ones that would have been Avarranted by the evidence had the demurrer been sustained. Hence, whatever technical error there may have been in overruling the demurrer was error without prejudice.
It is therefore recommended that the judgments of the district court be affirmed.
By the Court: For the reasons stated in the foregoing-opinion, the judgments of the district court are
Affirmed.