24 S.D. 32 | S.D. | 1909
This case is before us on an appeal by the defendant from a judgment entered in favor of the plaintiff and order denying a new trial. The action was instituted- by the plaintiff to recover damages for alleged assault and battery committed upon the plaintiff by the defendant claiming damages in the sum of $5,000. The defendant by his answer denied each and every allegation contained in plaintiff’s complaint. As a further answer, the defendant alleges that the plaintiff first assaulted the defendant and was engaged in the act of beating and bruising him, and that, if this defendant struck or kicked said plaintiff or committed any of the acts alleged in the complaint, the same was necessarily committed bv the defendant in self-defense in preventing and attempting to prevent an assault of the plaintiff upon his person, and that no more force and violence ivas used by this defendant than was sufficient to prevent such assault. On the trial the jury returned the following verdict: “We, the jury iii the above-entitled action, find in favor of the plaintiff and against the defendant on all the issues, and assess his actual damages at the sum of one thousand dollars, and his exemplary damages at the sum of $--, a total of one thousand dollars." Upon this verdict a judgment was rendered in favor of the plaintiff and against the defendant for the sum of $i,ooo and $85.75 costs. A motion for a new trial was made upon the minutes of the court and affidavits on the part of the defendant and counter affidavits on the' part of the plaintiff, and was made upon the following grounds in substance: “First. Irregularity in the proceedings of the adverse party and of the court, by which the defendant was prevented from having a fair trial. * * * Second. Irregularity in the proceedings of the court, by which the defendant was prevented from having a fair trial, by denying the application made by the defendant’s at
In order to fully understand the affidavits hereinafter referred to, it will be necessary to make a brief statement of the facts connected with the transaction resulting in the injury to the plaintiff. It is disclosed by the evidence that the defendant resided at Aberdeen, but was engaged as contractor in constructing a portion of a railroad west of the Missouri river; that at the time stated in the complaint he was in Watertown with some 70 or 80 horses which he was moving -to his grading camp on the railroad; that while in' Watertown he contracted a small bill at the iiver> stable of the plaintiff, which was at first presented to him by the plaintiff’s son and subsequently by the plaintiff himself, at which time the difficulty occurred; that in the difficulty occurring at the time the plaintiff sustained an injury to his knee joint, by reason of which he was confined to his house for several weeks. It is claimed by the plaintiff that he was assaulted by the defendant without provocation, and that he did not strike the defendant at
In the view we take of the case, it will only be necessary to consider the third assignment of error, viz., the court erred in denying the motion for a new trial on the ground of accident which ordinary prudence could not have guarded against, as specified in the third ground of the motion. The facts as disclosed by the affidavit of the defendant are as follows: The defendant was at work on a grading contract west of the Missouri river. His camp was 168 miles west of the river and 68 miles, from Dickinson, N. D., and the only means of communication was by mail through Dickinson. His principal witness, Frank M. Lyens, was at work on the grade between Cashmere and the Missouri river, and it was necessary for him to go that way in order to get 'said witness. He had planned to be in Watertown before the first day of the term, May 7th, to prepare for the trial. His son (who was also a witness, though not so important a one as Dyens) was at the camp, and the defendant was delayed in starting on account of the illness of his son, who was thought to have an attack of appendicitis. As soon as he found out that he could not get started in time, he sent a telegram to Dickinson, N. D., to be sent to his attorney, saying that he could not reach there until Thursday (meaning May 9th), but his son was not well enough to leave until Wednesday afternoon, May 8th. There had been a heavy snowstorm, unprecedented for that time of the year, which made the roads in an almost impassable condition. May
It clearly appears from the affidavit of the defendant that he was prevented by reason of unavoidable accidents and the illness of his son and his own illness from going to the place of trial at Watertown, some 250 miles or more from his grading camp, in time to be at the trial until the jury had been impaneled and the case partially tried; that at the time he arrived at AVatertown he was still ill and hardly in a condition to properly attend to his defense; that, by reason of the absence of Mr. Lyens from his camp, he was unable to take him along with him to the trial. It also clearly appears- from the affidavit of Mr. Lyens that he was a very important witness, being as it is shown, the only person near the scene of the difficulty at the time it occurred; and had the testimony of this witness been introduced on the trial, and had the jury believed his testimony, a verdict in favor of the defendant or a very largely reduced amount of damages would probably have resulted. It is claimed by the plaintiff’s counsel in his brief that the affidavit presented to the court for a continuance does not appear in the record in this case, and the facts therein stated were not sufficient to entitle the defendant to a continuance, but it appears from the affidavit of Judge Crofoot, the leading counsel for the defendant, that an affidavit was made, and through some inadvertence it was not filed, and appears to have been lost, but in an affidavit he states in substance as near as he can remember the contents of the affidavit. While under the circumstances had the defendant resided in the immediate vicinity of the trial, and his witness Lyens had resided in that locality, probably the affidavit was not sufficient to have entitled the defendant to a continuance, as no subpoena is shown to have
In the case of McCormick Har. Mach Co., supra, the Supreme Court of Utah in discussing a similar question says: “But the additional affidavits which were submitted after the trial showing the efforts of the defendants to be present in time to' make their defense present a case which merits careful consideration, and it must be weighed in the light of the circumstances surrounding it, for there is no general rule which governs a case of this character. As we regard the facts presented, it -seems clear that the defendants in good faith endeavored to be present at the trial, and were innocently misled and failed to be there without such
The contention of the respondent that the testimony sought to be introduced by the witness Byens was cumulative, and therefor that a new trial could not be granted, is not tenable. It appears by the testimony of the defendant that the difficulty resulting in injury to the plaintiff was so sudden and unexpected that he is unable to detail all the circumstances connected with it; and hence Lyens, who was apparently a disinterested witness, was able more fully to give the circumstances connected with the assault than the defendant could have done. But we apprehend that the rule applicable to ordinary cumulative testimony on motions for a new trial on the ground of newly discovered evidence is not applicable .as applied to a case where a party to the action is the principal witness. The rule as to cumulative evidence was adopted at a time when parties to an action were not permitted to testify as witnesses therein. It is a well-known fact, of which this court will take judicial notice, that jurors generally view with more or less suspicion the testimony of an interested party in the case, and naturally attach to it much less weight than would be given to the testimony of a disinterested witness. To say, therefore, that the question of cumulative testimony applies to testimony tending to corroborate the evidence of a party to the action constitutes cumulative testimony would often result in great injustice being done to such parties. The fact, therefore, that the testimony of Tyens would tend to corroborate the testimony of the defendant, and therefore constitute cumulative evidence within the meaning of that term as used in the cases, would, in our opinion, work great injustice.
The order denying a new trial is reversed, and the court is directed to vacate and set aside the judgment, and grant a new trial.