Bradley Lumber Co. v. Beasley

Smith, J. Appellee recovered judgment to compensate a serious injury which he sustained as the result of an explosion, his suit being based on the theory that appellant had sold him gasoline for kerosene. At the trial Fred Smith and L. C. Smith gave testimony tending to show that gasoline had been put into the can which appellee had brought to appellant’s store to carry the kerosene. A motion for a new trail was filed on the ground of the newly discovered evidence of Harry Johnson and Cora Johnson, his wife, who stated in their affidavits that they were present in appellant’s store when the purchase was made, and that neither of the Smiths was present at the time. In opposition to these affidavits, appellee offered the affidavits of a deputy sheriff, who was in attendance on the court, and of the clerk of the court, in which those officers swore that Johnson was in attendance during the trial of the case as a witness for appellant, the defendant below, and received a certificate as such. The motion for a new trial was overruled; and this appeal questions the correctness of that decision. Upon this showing, we think there was no abuse of the .court’s discretion in the matter of overruling the motion for a new trial. There was a sharp issue of fact as to whether any gasoline was pumped into appellee’s can, and the importance of knowing who was present when the sale was made is apparent. It is true the manager of the store and his son, who made the sale, testified that they .did not remember who was in the store at thé time. But appellant knew Johnson was present at the time of the sale, and Johnson was in attendance as a witness, and the trial court may have concluded that appellant should have inquired of Johnson, either before or during the trial, who was present when the oil was sold, and not have postponed that inquiry until after the trial was over. Moreover, the testimony of Johnson and his wife on ■the matter set out in their affidavits was in the nature of impeaching testimony of the Smiths (§ 4187, C. & M. Digest); and it has been held by this court that newly discovered evidence which goes only to impeach or discredit a witness is not ground for a new trial. Murphy v. Willis, 143 Ark. 1; Hayes v. State, 142 Ark. 587; Plumlee v. St. L. S. W. Ry. Co., 85 Ark. 488; Tillar v. Liebke, 78 Ark. 324; Jones v. State, 72 Ark. 404; Minkwitz v. Steen, 36 Ark. 260. This is the only error assigned for the reversal of the judgment, and it will therefore be affirmed.