Wright v. Stone

BARCUS, J. This suit was instituted by appellee against appellants, seeking to recover $607.07 claimed by appellee as the balance due him on salary for work he performed for appellants in pumping oil wells in the South Bosque oil fields. Appellants filed general denial, and specially pleaded that appellee had agreed to do the work for the oil that he might obtain from the wells during the time he was pumping same. The cause was submitted to a jury on special issues, and the jury’s findings were favorable to appellee. Based on said findings, judgment was entered for appellee against appellants ; hence this appeal. Appellants contend that the verdict of the jury is unsupported by the testimony. We have carefully examined the statement of facts, and, while the testimony is very conflicting, the evidence is sufficient to support the findings of the jury. Appellants complain of the action of the trial court in overruling their motion for a new trial on the ground of newly discovered evidence. The verdict of the jury in this cause was returned on October 80, 1924. On December 6, 1924, the day court adjourned for the term, appellants filed their amended motion for a new trial, and for the first time gave, as one of the reasons for a new trial, the newly discovered evidence. Appellants did not offer any testimony in support of their motion except the affidavits attached thereto. Mr. Crain, one of the new witnesses, had, at request of appellants, been in attendance upon the court during the trial, and had been in the employ of appellants for a number of months. The other new witness, Mr. Hancock, lived in the eom- *938 munity. Prom their affidavits, their testimony was very meager, and was only cumulative and impeaching in character. There was no diligence shown as to why said witnesses had not been sooner discovered. The question of granting new trials because of newly discovered' evidence is largely within the discretion of the trial court, and, unless it appears that the trial court has abused its discretion, its ruling will not be disturbed. We cannot say the trial court in this case abused its discretion. T. & N. O. Ry. Co. v. Scarbrough, 101 Tex. 436, 108 S. W. 804; Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 539, 124 S. W. 85; T. & P. Ry. Co. v. Duff (Tex. Civ. App.) 207 S. W. 580; Jones v. Wichita Valley Ry. Co. (Tex. Civ. App.) 195 S. W. 890; Strachbein v. Gilmer (Tex. Civ. App.) 202 S. W. 333; Qualls v. Fowler (Tex. Civ. App.) 186 S. W. 256; G. C. & S. F. Ry. Co. v. Blanchard, 96 Tex. 616, 75 S. W. 6; Frye v. Wayland (Tex. Civ. App.) 228 S. W. 974; Kennon v. Miller (Tex. Civ. App.) 143 S. W. 986. We have examined all of appellants’ assignments of error, and same are overruled. The judgment of the trial court is affirmed. GALLAGHER, C. J., took no part in the decision of this case.