Denvir v. Judson Freight Forwarding Co.

McLUCAS, J., pro tem.

P

laintiff appeals from judgments of nonsuit in the above-entitled actions.

These actions for damages arising out of the shipment of an automobile from Los Angeles, California, to St. Louis, Missouri, during the month of October, 1920. The defendant Braley operated a garage in which plaintiff had stored her automobile. Acting upon telegraphic instructions, Braley delivered plaintiff’s automobile to the defendant Judson

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Freight Forwarding Company for shipment to plaintiff in St. Louis, Missouri. The automobile at the time of shipment was in perfect order; but upon arrival in St. Louis it was found to be in a greatly damaged condition, caused by water freezing in the radiator and water jacket. Plaintiff brought these two actions, which were consolidated for the purposes of trial, to recover the amounts paid by her for repairs to her automobile necessitated by the damaged condition in which it was received, alleging that the negligence of both defendants in not seeing that the automobile was properly drained before shipment was the cause of the damage. At the trial of the consolidated actions plaintiff called as a witness one Engelman, a former employee of the Judson Freight Forwarding Company, who testified that he had seen the water drained from the automobile in question at the time of its delivery to the Judson Freight Forwarding Company for shipment. The court ordered a nonsuit in favor of both defendants. Plaintiff made a motion for a new trial upon the ground of “accident and surprise which ordinary prudence could not have guarded against. ’ ’ The motion was denied.

In support of plaintiff’s motion for a new trial, she filed the affidavit of her attorney, stating, among other matters, that plaintiff was surprised by the testimony of the witness Engelman to the effect that he had seen the water drained from the engine of the automobile in question; that ordinary prudence could not have guarded against such testimony; and that plaintiff is now in possession of newly discovered evidence in the form of a letter from the defendants, in which the fact of the water not having been drained from the said automobile and the resultant damage thereto is admitted, but that such letter could not with reasonable diligence have been produced at the trial. The letter to which the affidavit refers reads: