Whitehead v. Breckenridge

Townsend, J. The appellant filed three assignments of error, as follows: “(1) That the verdict of the jury was not supported by any evidence; hence, ought to have been set aside. (2) The newly discovered evidence of the appellant was very [136] material, and that a new trial should have been given upon the showing of this newly discovered evidence. (3) The court erred in not ordering that the witness fees of Ben T. Laws, a witness for appellant, be taxed as costs.” The contention of the appellant seems to be that, for the reason that he is unable to determine from the evidence admitted in the case, and contained in the bill of exceptions^ how the jury could arrive at the verdict they did, he, in consequence, assumes that they arrived at it by a compromise. There is no evidence that they reached the conclusion they did by a compromise, and no authorities are cited by appellant to sustain the proposition that, because he cannot determine how they reached the conclusion they did, it must therefore necessarily have been by compromise. We doubt if any authority could be found to sustain such a contention. We can only consider the evidence brought up by the bill of exceptions, and that does not purport to contain all the evidence that was submitted in the case. The appellant discusses only the evidence contained in the bill, the appellee insists that other evidence was introduced, and the bill of exceptions does not say that all the evidence was contained therein. It may be that the jury reached their conclusion from evidence not contained in the bill. It will not do to say that there was no evidence to support the verdict, for the appellee admitted that before his payments wore made he was indebted in the sum of $104.34. The only controversy was as to the amount of the payments, and the evidence on that question was conflicting. It is often quite impossible to determine how a jury, in their deliberations, arrive at certain results. The trial judge was evidently pf the opinion that substantial justice had been done, and he, having heard' the evidence, and observed the witnesses upon the stand, was better fitted to pass upon that question than any appellate court could be. In the language of Brewer, J. (Parshall vs Minneapolis & St. Louis Ry. Co. (C. C). [137] 35 Fed. 649), “motions for new trials are simply appeals to the discretion of the court, and are not matters of right to be claimed by the defeated party.” “It is clear,” says the learned judge, “that the trial judge better than any one else can determine whether substantial justice has been done.” See, also, Dickerson vs Johnson, 24 Ark. 251; Drennen vs Brown, 10 Ark. 138. When all the evidence is not set forth in the bill of exceptions, the presumption is that there was evidence to support the verdict. Taylor vs Spears, 8 Ark. 429. The court will not review the verdict of a jury where it is merely against the weight of the evidence. Dickerson vs Johnson, 24 Ark. 251; Purcell Mill & Elevator Company vs.Kirkland, 2 Ind. Ter. 169, 47 S. W. 311; Drennen vs Brown, 10 Ark. 138. Courts are very slow to disturb the findings of a jury, and such has repeatedly been declared the policy of the Supreme Court of Arkansas, and that court goes so far as to say that the verdict will not be disturbed if there is any evidence upon which it may be supported. Jabine & Woodruff vs Midgett, 25 Ark. 474; Dickerson vs Johnson, 24 Ark. 251; Trieber vs Andrews, 31 Ark. 163; Hill et al vs Jayne, 18 Ark. 396. New trials on the ground of newly discovered evidence are largely in the discretion of the trial judge. “There is nothing, perhaps, touching the power of granting new trials which more requires that its exercise should be left in the discretion of the court where the trial is had, then trials based upon this ground.” Scott, J., in Bourland vs Skimnee, 11 Ark. 671. Newly discovered evidence, in order to be sufficient, must fulfill all the following requriements: (1) It must be such as will probably change the result if a new trial is granted. (2) It must have been discovered since the trial, and such as could not have been discovered before the trial by the exercise of due diligence. (3) It must be material to the issue. (4) It must not be merely cumulative of former evidence. (5) It must not .be merely impeaching or contradicting of former evidence. Robins vs Fowler, 2. Ark. 133; White et al vs State, 17 Ark. 404; Burriss vs [138] Wise, 2 Ark. 33. The newly discovered evidence in this case upon which the appellant asked for a new trial is merely contradictory of the statement of Breckenridge as to where he obtained the money to make the $95 payment, and hence cannot be urged as sufficient ground for a new trial. White vs State, 47 Ark. 404; Robins vs Fowler, 2 Ark. 133; Holt vs State, 47 Ark. 196, 1 S. W. 61; Redman vs State, 40 Ark. 445; Lowry vs Mt. Adams Incline Plane R. Co. (C. C.) 68 Fed. 827. Newly discovered evidence which goes merely to impeaching a witness is no ground for a new trial. Wallace vs State, 28 Ark. 531; Minkwitz vs Steen, 36 Ark. 260. The error assigned in not allowing mileage for witness Laws is not tenable. The record shows the witness was not served within the jurisdiction of the court, and the court, under such service, could not have compelled his attendance. It would have been in the discretion of the court, at any rate, to disallow any costs accumulated unnecessarily. The witness' deposition could have been taken, and it was the proper way to bring his evidence before the court, as he was more than 30 miles from where the court sat. Mansf. Dig. §. 2921 (Ind. Ter. St. 1899, § 2036). There being, in our opinion, no error in the refusal of the court to grant a new trial, the judgment of the lower court should be, and is, affirmed. Raymond, C. J., and Gill, J., concur.