122 Ky. 745 | Ky. Ct. App. | 1906
OPINION op the Coubt by
— Affirming.
Tlie appellant, Joe Torain, a young man 19 years of age, by next friend, instituted tbis action to recover
Appellant’s first complaint is that'the lower conrt erred in striking from his petition, at appellee’s instance, a paragraph relative to certain acts of the latter and some of his servants, and to the flight of appellant from their presence; all occurring after the alleged asasulting and shooting of appellant complained of. We perceive no reason for sustaining this contention. The paragraph in question was properly stricken from the petition. Its recitals were mere matters of evidence, proper to go to the jury as such but out of place in tire petition, the office of which is to set forth the facts constituting the plaintiff’s cause of action, and not the evidence by which they are to be established.
Appellant also complains that the lower court improperly refused to permit the filing of the amended petition offered by him. As the amended petition only set forth in more elaborate form the matters of evidence pleaded in the paragraph stricken from the original petition, it was properly rejected.
The further complaint is made by appellant that it was error to grant appellee a new trial. We also think this contention untenable. The new trial was granted on account of newly discovered evidence, and
The evidence introduced in appellant’s behalf was to the effect that appellee went into a room where appellant, who was in his employ as a farm hand, was, and asked him if he and Harry Williams, another farm hand, had unloaded some corn they had just hauled in, and, directing them to go on to work, started to leave the room, outside and near the door of which his partner, Flournoy, was standing; that upon reaching the door appellee heard appellant say he had not had his dinner and was not going to work until he got his dinner; that Terrell, becoming 'angry at this, stepped back into the room and struck appellant in the face, and, being pushed away by the latter, drew his pistol and shot him; that appellant had a.t the time neither pistol or knife, and did not put his hand into his pocket as if to draw a weapon. Upon the other hand, appellee’s version of the difficulty was that, when he asked appellant if he had unloaded the corn, and told him if he had to go on to work, appellant, said, in an angry manner and with an oath, that he was not going to work until he got his dinner, and that upon this statement appellee began
The newly discovered evidence upon which the lower court granted appellee a new trial is shown by the affidavit of the latter, and those of Hurley and Austin. According to the affidavit of Hurley he had a conversation with appellant in Paducah soon after he was shot by appellee, in which appellant in effect admitted he began the difficulty, as he “jumped up and grabbed Terrell, and run his hand in his pocket; that when he did this he had a knife in his hand, but did not draw it;” that just at this, time his brother, Tom Torian, ran around the table, and he reckons this is the reason that Mr. Terrell shot him; that he grabbed Mr. Terrell and pulled him up so dose to him that he did not see the pistol, but simply heard the report. From Austin’s affidavit it appears that in the spring, after appellant had been shot by appellee, he heard appellant, in a conversation with others at the comer of Fourth- and Broadway streets, in Paducah, tell him “that he reckoned if the truth was known Mr. Terrell did right when he shot him, and that he did m> more than he ought to have done.”
It is insisted for appellant that the testimony of these witnesses was only cumulative, and for this reason the granting of the new! trial was unauthorized. If appellant had a knife in his pocket and was attempting to draw it when shot by appellee, as Iiurlev heard him say, that fact was of great importance, and was one to which appellee was unable to testify, as. he did not see it. At most he could only say that he believed appellant had a knife with whiefr he intended to cut him, as he saw him put bis hand in his pocket before he shot him. Nor did he have a witness other than himself by whom he could prove appellant had a knife. Flournoy was not near enough or in a position to. see it, or to' see that appellant put his hand in his pocket before appellee shot him, or that he had it in his pocket. It is likewise true that the admission of appellant in the hearing of Austin that appellee did- right in shooting him had never been made by him to any other of appellee’s witnesses, and of necesisty he could not have proved it by any other witness at the first trial. For the foregoing reasons, it cannot fairly be said
The1 rule that newly discovered evidence which' is merely cumulative is not ground for a new trial allows of some exceptions. For instance, the rule does not apply if the nely discovered evidence, though cumulative, is sufficient to' render clear that which was before a doubtful case, or if it is of a conclusive or decisive character, or of so controlling a character it would probably change the verdict. 8 A. & E. Ency. of Law, 477; Adams Oil Co. v. Stout, 41 S. W., 563; 19 Ky. Law Rep., 758; Owsley v. Owsley, 117 Ky., 47; 77 S. W., 397; 25 Ky. Law Rep., 1191. Applications for new trials are addressed to the
Another contention of appellant is that the court erred in adjudging on the two trials of the case- that the burden of proof was on appellee, and in permitting his counsel to conclude the argument. This contention rests upon the assumption that as the petition alleges the striking of appellant by appellee with his first and a pistol, as well as that he shot and wounded him, and the striking was- denied by the answer, which only admitted and justified the shooting, this state of the pleadings placed the burden of the whole case on appellant, which entitled bim to the concluding argument, as provided by sections 317-525, Civ. Code Prac. Fairly construed, the pleadings do not authorize this conclusion. The petition sets out but one asasult and battery. This was done with unnecessary detail. It would have been sufficient if the petition had alleged that appellee unlawfully assaulted, beat, and shot appellant. The gravaman of the action was the shooting of appellant by appellee without cause, and it was unnecessary to' allege every detail of the transaction which could be proved as a matter of evidence on the trial as a part of the res geste and in aggravation of the wrong complained of. The answer not only admitted the shooting and
There were, in our opinion, no errors committed by the lower court to appellant’s prejudice in the admission or rejection of evidence, and no complaint is made of the instructions. Wherefore, the judgment is .affirmed.