Continental Gin Co. v. Eaton

SAYRE, J. The judge of the circuit denied appellee’s petition for relief under the Workmen’s Compensation Daw, but after-wards, on appellee’s motion for a new trial, set aside his finding and ordered a rehearing‘without more. We see no reason which should induce this court to hold that the order in question is not the proper subject of review in this court under and in agreement with the general law on the subject of new trials. In compensation cases technical rules of procedure are laid aside as far as practicable; but that affords no reason why the trial court may not correct errors, or why an error of the particular sort alleged in this case should not be corrected on appeal. This we construe to be the effect of the concluding clause of section 7578 of the Code of 1923, reserving to the appellate courts jurisdiction, in such cases, “to review questions of law by certiorari.” Whether, on the showing made, appellee was justly due a rehearing is a question to be determined upon‘consideration of the record as in other cases. Without going into the merits of the original controversy between the parties— which, it may well be, were correctly reflected in the judgment denying relief — we feel constrained to hold that the motion for a new trial in this case was erroneously granted. On the original hearing the trial judge found that appellee had sustained no injury in the accident of which he made proof. The motion for new trial alleged several grounds; but the evidence adduced by appellee at the hearing of the motion went to the proposition only that appellee had sustained injury in manner and form as alleged by him. We conclude, therefore, that the motion was granted on the ground of newly discovered evidence. Under the general law parties are entitled to a new trial on the ground of' newly discovered evidence only when they have shown diligence in an effort to prepare their cases with respect to the evidence offered and the new evidence is not merely cumulative of the evidence offered at the trial. Appellee’s affidavit was nothing more than that the newly discovered evidence offered by him “was not available to him on the former hearing of this cause.” This by no means showed diligence to pro-, cure the testimony offered on the hearing of the motion, and, moreover, the affidavits of the proposed new witnesses show that their testimony on a second trial would be merely cumulative — -would tend merely to corroborate the testimony of appellee as to the nature of the injury alleged by him. These considerations suffice to show that under the general law appellee was not entitled to have the judgment against him set aside. 10 Mich. Dig. p. 639, and page 641, § 54. The same rules must be applied in causes of this character to the end that such causes be definitely determined as expeditiously as possible. The order granting a new trial will be reversed, and the original judgment reinstated. Writ granted; reversed and rendered. ANDERSON, O. J., and GARDNER and MIDDER, JJ., concur.