Geter v. Central Coal Co.

43 So. 367 | Ala. | 1907

TYSON, C. J. —

This case was tried on the 30th day of September, 1902. On the 30th day of October following a motion for a new trial was entered. This motion was disposed of on the 30th day of June, 1905, by judgment overruling it. The bill of exceptions in the record was signed on the 18th day of October of 'the same year, but within the time allowed for its signing by an order of the court made when the motion ivas denied and other orders of the piesiding judge made in vacation.

Many assignments of error are predicated upon exceptions reserved upon the trial not made grounds for the motion for new trial. It is clear that these cannot be considered. It is only the assignment of erior based upon the ruling upon the motion that is presented for review, for the reason that the bill of exceptions can only be regarded as preserving the exception taken to that ruling.- — -5 Mayfield’s Big. p. 720, § 15.

The motion contained a number of grounds. The main cause of complaint seems to -be aimed at the conduct of the presiding judge, which, it is asserted, was prejudicial to plaintiff’s cause in the minds of the jury that tried it. His conduct, upon ivhich is relied as sustaining the assertion, was in giving .undue emphasis to certain words in his oral charge to- the jury, cautioning them not to permit their sympathies to influence their verdict, etc., and in acts of familiarity ivith one Pearson who- was a stockholder in and an officer of defendant-corporation, and a witness.for it on the trial of the case.

It does not appear that plaintiff reserved an exception to the charge of the court, and unless this was done he must be regarded as: haying waived all objections he may have had to it. He will not be allowed, to speculate upon its effect upon the jury. He could not await their verdict, and, in the event it is adverse to him, complain that he was prejudiced by the charge, when he made no objection to it. The attempt to cure the omission of reserving an exception, if the .charge was es- . teemed to be erroneous and prejudicial, by a motion for a new trial, must be regarded as wholly ineffectual. Such is not the office of a motion. In .other words, a motion for a new trial cannot take the place of an exception, which could and should' be properly reserved during the trial. — McLendon v. Bush, 127 Ala. 470, 29 South. 56, and authorities there cited; Stewart v. Guy, 138 Ala. 176, 34 South. 1007. This principle is also applicable and-controlling with respect to. the remark of the court to plaintiff’s counsel as to his (plaintiff’s) being able “to- get his own chair” when called to the witness stand to testify in his own behalf.

With respect to the conduct of the presiding judge towards Pearson we are not reasonably satisfied, from the evidence introduced pro'and con, that this ground of the motion was proved. Undoubtedly tire burden of proving the fact was upon the movant. Its occurrence was denied by Pearson and counsel for defendant, and the presiding judge found against the movant on the issue. In view of the burden of proof and the presumption of correctness which must be accorded the finding of the trial judge on this disputed issue of fact, we feel constrained to hold that we cannot affirm that this ground of the motion was well taken.

The other grounds of the motion are predicated upon surprise during the trial and newly discovered evidence. Both of these grounds are attempted to be supported by affidavits exhibited for the purpose of showing that the testimony of Pearson, who was examined as a witness by defendant, that plaintiff made certain admissions to him before the action was brought, was untrue. It appears from the bill of exceptions that plaintiff, while testifying in his own behalf on redirect examination, denied making any such admissions or statements, and that subsequently in the course of the trial the defense offered the testimony of Pearson to show that he made them. It is apparent, therefore, that there was no' surpise. His own- testimony shows that he anticipated that the evidence introduced by defendant would be offered; otherwisé, he would hardly have denied making the statement in advance of its introduction by defendant. But, aside from this, had lie not shown that he anticipated such testimony, and if surprised by it, he should have moved a continuance of the cause or a postponement of the trial. “The correct prac" tice in such case is for the party at once, upon the discovery of the cause during the progress bf the trial which operates as a. surprise on him, to move a continuance or postponement of the trial, and not attempt to avail himself of the chance of obtaining a verdict on the evidence he has been able to introduce, and, if he should fail, then apply for a new trial on the ground of surprise. To tolerate such a practice would have the effect óf giving to the.'party surprised an unreasonablé and unfair advantage, and tend to an unnecessary and improper consumption, of the time of the court.” — Hoskins v. Hight, 95 Ala. 284, 11 South. 253.

Suffice it to say as to the merits of the motion predicated upon newly discovered evidence, that the new evidence offered in support of the ground of the motion was merely cumulative of the plaintiff’s denial that he made the statement or admission. Under all the authorities, “it is a well-settled rule that a new trial will not be granted on the ground of newly discovered evidence, wrhen the new evidence relied on is merely cumulative to that introduced a.t the former trial.” — 14 Ency. of Pl. & Pr. p. 811, and note 2.

Other reasons might be stated justifying the overruling of the motion on the two grounds last discussed, but those given are sufficient to affirm the ruling of the court in tliis case.

Affirmed.

Dowdell, Anderson, and McClellan, JJ., concur.