Seemann v. Kastner

Eschweiler, J. An examination of the record satisfies us that the defendants on their motion for a new trial did not present sufficient grounds to warrant the trial court in granting them that relief and that plaintiff’s motion for judgment should have been granted. On the first day of the trial defendants’ counsel cross-examined the witnesses produced by plaintiff on the exact and material point involved on the motion for the new trial, namely, the length of time it would require potatoes to show their frozen condition by their outward appearance when kept at the temperature of the basement in which they were stored and which was shown to be 35 to 40 degrees Fahrenheit. On the same day and as part of defendants’ case a Mr. Gehl, who had been in the commission and produce business for thirty years and had handled potatoes in carload lots, was called and testified that a frozen potato stored at such temperature will become wet and thereby show such frozen condition within four hours and would be mushy or soft within twenty-four hours. On the following day he was recalled, and on direct examination by defendants’ counsel testified that after the adjournment on the preceding day he had placed some potatoes in storage at a temperature considerably below freezing and had brought them with him into court, and then testified and showed to the jury that such potatoes, when exposed to the temperature of the court room, then about 65 degrees Fahrenheit, would become, wet and disclose their frozen condition within half an hour. On this second occasion he was not again asked as to the length of time that would elapse before such condition would disclose itself if such frozen potatoes were kept at the temperature of 35 to 40 degrees Fahrenheit, nor any explanation then or now made as to why an experiment at such last [55] stated temperature was not or could not have been made similar to that then made. The result of the experiment on May 8th to 10th and detailed in the affidavit accompanying defendants’ motion for a new trial was made by another commission merchant than Mr. Gehl. The result of such experiment so detailed is in accord with the testimony of Mr. Gehl on that precise point as given on the first day of the trial and is purely cumulative and might well be deemed insufficient upon that ground alone. Wilson v. Plank, 41 Wis. 94, 96; Sparling v. U. S. Sugar Co. 136 Wis. 509, 514, 117 N. W. 1055; Luebke v. Salzwedel, 157 Wis. 601, 603, 147 N. W. 831. See note in L. R. A. 1916C, 1189. It was as purely cumulative to the oral testimony already given as the proposed X-ray examination of an injured limb was held to be in Hobart-Lee Tie Co. v. Keck, 89 Ark. 122, 116 S. W. 183. Furthermore, defendants might have availed themselves of an examination of plaintiff prior to the trial and have ascertained the necessary facts and have had ample opportunity to present on the trial the experiment recited in the affidavit. The record also discloses that one of the defendants made weekly visits at the place of business of plaintiff’s decedent and could have seen where and how potatoes were stored from the first. We think, therefore, that due diligence, which is an essential element -in such applications (Clithero v. Fenner, 122 Wis. 356, 363, 99 N. W. 1027), was not shown. The proposed experiment was more of an after-thought than that which could be properly treated as newly-discovered evidence, and the circuit court was therefore clearly right in directing judgment for the plaintiff. By the Court. — Judgment affirmed.