On appeal from the Supreme Court, Hudson Circuit.
For the plaintiff-respondent, Verga & Verga (Julius A. Kepsel, of counsel).
For the defendant-appellant, Charles A. Rooney.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The plaintiff below recovered judgment for $5,000 for damages resulting from personal
injuries. The trial court allowed a rule to show cause. Depositions were taken in aid of the rule. The scope of the rule was limited to the quantum of damages.
On its return, the rule was discharged. More than two months thereafter defendant's counsel obtained leave to reargue the rule to show cause. The reargument was likewise unsuccessful and defendant appeals from the judgment on the unusual ground that the court "failed to consider and give legal effect to the depositions taken pursuant to the mandate of said rule to show cause," because, counsel says, the depositions made it evident that the plaintiff didn't tell the truth at the trial and the court's failure to grant a new trial amounted to an abuse of discretion.
The facts in the case are very brief. Plaintiff was a passenger in a bus which was wrecked, the plaintiff sustaining serious injuries. Among the elements of her damage was included loss of wages, she claiming to have been employed by two concerns from which she received seventy-five ($75) dollars weekly wages. The depositions taken in support of the rule to show cause indicate that this testimony was untruthful. The court below discharged the rule and refused to consider the depositions because the matter therein contained was not new matter in a legal sense, and denied a motion in arrest of judgment because there was nothing on the record indicating error. We are of the opinion that the court below was correct in its disposition of both matters.
The accident happened on June 23d, 1931. Suit was not started until May 13th, 1932, and was not tried until March 22d, 1934. The defendant had the benefit of a bill of particulars wherein the plaintiff set down in detail, among other things, who her employers were, the amount of wages she was accustomed to receive and the period during which she was deprived of those earnings by reason of the accident.
It also appears that the depositions, taken after judgment and in support of the rule, were obtained in California within five days after counsel agreed upon taking them and that they indicate that plaintiff, at the time of her injuries, was not in the employ of the parties mentioned. This auxiliary testimony,
however, is of no value in an application for a new trial. It was not newly discovered evidence in the legal sense, sufficient to motivate the court below to set aside this judgment; nor was it evidence that was not readily ...