On appeal from the Supreme Court, whose opinion is reported in 113 N.J.L. 253.
For the prosecutor-appellant, John J. Francis and Joseph Coult.
For the defendant-appellee, Richard W. Baker.
The opinion of the court was delivered by
BODINE, J. This appeal brings up an affirmance in the Supreme Court of an award in a workmen's compensation case. There was also an affirmance in the Court of Common Pleas. Our conclusion, however, is that the judgment must be reversed.
Petitioner's husband died June 6th, 1925. The original petition to the bureau was filed July 8th, 1925. This action was dismissed December 16th, 1925, for want of proof that the accident arose out of and in the course of deceased's employment.
On April 30th, 1932, petitioner filed a petition for a rehearing upon the ground of newly discovered evidence. This was granted and the award complained of was allowed.
"A new trial shall not be granted where the party might have had the evidence on the first trial if he had exercised ordinary diligence." Deacon v. Allen, 4 N.J.L. 386. Reasonable diligence seems to be the modern standard. Murphy v. Skelly, 101 N.J. Eq. 793.
Because a party has failed to inquire as to the facts from witnesses who obviously knew all about them affords no basis whatever for granting a new trial. Sheppard v. Sheppard, 10 N.J.L. 250.
"It is not enough that the evidence has been discovered since the former trial, but it must also appear that the evidence is such that, by the exercise of reasonable or due diligence on the part of the applicant, it could not have been procured for the first trial." Hoban v. Sandford & Stillman Co., 64 N.J.L. 426, 437. See, also, Ellis v. Martin Automobile Co., 77 Id. 339; Christie v. Petrullo, 101 Id. 492.
All that the proofs here indicate is that petitioner and her son, who investigated the matter for her, did not take the trouble before the first trial nor for seven years thereafter to interview the deceased's fellow employes, or the employes at the adjoining plant near where testator was killed. Because a party has failed to inquire as to the facts from witnesses whom it would be apparent to the most ignorant would know something of deceased's activities upon the day of his death
and his purpose in going to the barge, which he was apparently leaving when he slipped and fell, receiving the fatal injuries, furnishes no basis ...