16 S.W.2d 492 | Ky. Ct. App. | 1929
Affirming.
This is an action for a new trial on the ground of fraud and newly discovered evidence. Civil Code sees. 343, 344. The action was dismissed, and the plaintiff appeals.
Galloway recovered a judgment against Dr. Powell and a motion for a new trial was overruled. See Powell v. Galloway,
The petition further alleged that the jury, during its deliberations, had considered and discussed the question of whether Dr. Powell had insurance to indemnify him against any judgment that might be rendered, and that the jurors were influenced and prejudiced against him by the discussion. The proof failed to sustain the charge with reference to improper conduct of the jury, but the plaintiff introduced considerable testimony to show that Galloway had worked on a farm at the hay baler, had played baseball, and had performed other labor requiring strength in the injured arm; but there was contradictory evidence that Galloway was unable to make a hand at the hay baler, that he was excluded from the ball team on account of his crippled hand, and that his exertions were not incompatible with his injury being as delineated at the trial. The court declined to grant a new trial.
The rule is that newly discovered evidence, in order to authorize the granting of a new trial, must be of a decisive nature, and such as to render a different result reasonably certain. If it is merely cumulative, or in sharp conflict, it will not authorize a new trial. Anshutz v. Louisville Ry. Co.,
Our examination of the evidence discloses that it was in sharp conflict, and was not of such certain and unerring character as to have been decisive of the issue involved.
The finding of the circuit court, based upon conflicting evidence, will not be revised by this court, when the mind is left in doubt as to the truth of the matter under investigation. West Pub. Co.'s S.W. Digest Appeal and Error. — 1009.
The judgment is affirmed.