O'Nash v. Booth

PRESTON, P. J.

Action for damages for personal injuries. The cause was tried before a jury and resulted in a verdict and judgment in favor of the plaintiff for the .sum of |10,000.

A motion for a new trial was made principally upon the ground of newly discovered evidence. The motion was denied. From the judgment entered upon the verdict defendant Booth prosecutes this appeal.

Plaintiff 'was severely and permanently injured in the right arm and shoulder on October 1, 1928, at the intersection of Nineteenth and Q Streets, in the city of Sacramento, when the automobile in which he was riding as a guest of defendant and appellant, collided with another automobile driven by a man by the name of Mulligan.

The sole contention made for a reversal of the judgment is that the trial court abused its discretion in denying appellant’s motion for a new trial. The motion was heard upon the affidavit of one of the defendant’s attorneys and upon the counter-affidavits of plaintiff and Dr. June B. Harris, which affidavits reveal substantially these facts:

This accident occurred on October 1, 1928, and the injuries received by plaintiff, according to his testimony and that of his physician, consisted of a severe injury to his right arm and shoulder, which totally and permanently incapacitated him from performing any manual labor of any kind. On July 12, 1930, about seventeen days after the trial, defendant’s attorney discovered that plaintiff had received an injury to this same arm in Fresno on the third day of March, 1920, and that the subjective symptoms related by plaintiff to the various and several doctors who examined and treated him following this first injury in 1920, are very similar to the subjective symptoms related by plaintiff upon the trial of this action, and that he believes that the injuries

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now complained of by plaintiff were traceable back to the injury received by plaintiff in 1920, and that if a new trial could be granted he would produce witnesses to substantiate said contentions. The affidavit of Mr. Desmond, one of defendant’s attorneys, also avers:

“That the deposition of said plaintiff was taken ... on the 9th day of November, 1929, . . . and at said time and . . . plaintiff testified that he had lost a portion of his left arm in a railroad accident many years ago, and that his right arm had not been injured in said railroad accident, but plaintiff failed to state at said time and . . . that his right arm had ever before been injured.”