McClendon v. McKissack

DOWDELL, J. The appeal in this case is prosecuted from the judgment of the circuit court overruling a motion for a new trial. The first and second grounds of the motion were to the effect that the verdict of the jury was contrary to the evidence, or to the weight of the evidence. The third ground was based upon remarks made by plaintiff’s counsel to the jury. The 4th, 5th, 6th, 7th, 8th, 9th, 10th and lltli grounds were based on specific written charges refused to the defendants. The 12th ground was for newly discovered evidence. The 3rd, 7th and 9th grounds arc; not insisted on in argument by counsel for appellants, and we therefore decline to notice these grounds. The charges set out in the 4th and 5th grounds, and which were refused, were argumentative, and for this reason the court committed no error in the refusal of them. The charges set out in the 6th, 8th and 10th grounds of the motion, if for no (fiber reason, were properly refused as tending to mislead the jury. The mere commingling of the goods by the owner, with those of another, does not destroy, the owner’s property right in his own goods, unless by such commingling the identity of the goods he lost, or unless such commingling was done with a fraudulent intent and purpose. The charge set out in the 11th ground of the motion is faulty in that it confines the plaintiff, in meeting the burden of proof shifted upon him by the conditions stated in the charge, to- the introduction of other evidence showing his ownership of the property, ignoring plaintiff’s right to offer evidence explanatory of the “Facts [192] and circumstances” introduced in evidence by the defendants, and for this reason, if no other, the charge was properly refused. Much of the argument of counsel as to- the first and second grounds, auk; that the verdict Avas contrary to the evidence, is directed to what counsel regard as contradictory statements in the testimony of the plaintiff, testifying as a witness in his oavix behalf. The witness Avas examined orally before the jury and in the presence of the trial judge, ivho- had better opportunities for determining what Aveight should be accorded to his evidence, than this Court has. Upon the Axdiole evidence, which we have carefully considered, we are not prepared to say, under the rule laid down in Cobb v. Malone, 92 Ala. 630, that, after allowing all reasonable presumptions of the correctness of the ruling of the trial coxirt, the preponderance of the evidence against the verdict is so decided as to clearly conAÚnce this Court: that it is wrong and unjust. It is claimed that the newly diacovercd evidence Avao disclosed upon the exaxniuation of the plaintiff as a Avitnesis on the trial, and that it could not have been sooner discovered by due diligence, and that the same Avas material. Waiving consideration of the ni'atei'iality of the evidence, it appeal's that this case; had beexx peixdixxg ixx the court for about texx years, and there had been a former trial at which the plaintiff Avas exaxnixxed as a Avitneas. In the affidavits filed oxx the motion, it is not satisfactorily sIxoaa'ix that the defendants could not haxre brought out on a cro'SS-exaxninatioxx of plaintiff, when examined as a Avitness, the matter testified to upon the last trial, and Avhicli is claimed to be nexvly discovered evidence. Counsel for defendants, who conducted the cross-examination of plaintiff oxx both trials, admit ixx their affidavits that, oxx the former or first trial, “The principal axxd only defense actually made by the defendants Avas the liability of defendant® on the bond, they assuming that the bond sued on Avas not a statutory bond.” This being so, there aatis little or nothing to excite inquiry as to Avlxat xnercliaxxts the plaintiff purchased the goods from, much less a diligexxt inquiry to that end. The plaintiff, in his affidavit oxx the motion, [193] says that, upon the first trial when he was examined as a witness, upon his examination by counsel, when asked as to where he obtained the stock of goods which was levied on by the sheriff, “He as witness aforesaid answered as fully as he was aiskecl to tell where he obtained said goods; that he bought some from one Koerber, in Columbia, for which he paid over $500.00, and that he bought other goods from different mercantile houses in Macon, Atlanta and Columbus, Ga., Birmingham, Ala., New York and Noav Orleans, .and for á good part of which he paid cash and a part of it he bought on time, and wais in debt 'for a part of said stock, when they were seized by the sheriff under attachment.” This statement is not denied, but stress is laid upon the proposition, that lie did not give the names of the different merchants from whom he purchased and the amounts. It is not shown that he was asked to do so, and doubtless for the reason that a defense on an entirely different line, and “The only defense,” was relied on. We do not think the defendants have shown that degree of diligence necessary to meet the requirements of the rule entitling them to a new trial on the ground of newly discovered evidence. — K. C. M. & B. R. Co. v. Phillips, 98 Ala. 159. Furthermore, the defendants neglected and failed to claim any surprise upon the trial. See Simpson v. Golden, 114 Ala. 336; The Bayonne Knife Company v. Umbenhaer, 107 Ala. 496. We find no reversible error in the record, and the judgment must he affirmed. Affirmed. McClellan, C. J., Haralson and Denson, J.J., concur.