Heintz v. Cooper

Van Fleet, J. This is an appeal by plaintiff from an order granting the defendant’s motion for a new trial. The motion was made upon several grounds, among which was that of newly discovered evidence, and the order granting the motion specifies the latter as the ground upon which the new trial is granted.

. The appellant does not deny that the showing was sufficient to warrant the court in holding the evidence newly discovered, and that it was material, but the sole ground upon which he urges a reversal of the order is that there was no sufficient showing of diligence. We have carefully examined the record with this objection in view, and we are unable after such examination to say that the showing upon the point urged is so devoid of merit as to make the action of the court amount to an abuse of discretion. The granting of a new trial upon this ground is so peculiarly within the discretion of the. trial court that the record must be very bald indeed which will induce this court to interfere with its action. And that this should be so is perfectly obvious. Diligence is a relative term incapable of exact definition. What would amount to due diligence under one state of [670]facts would fall absolutely short of it under another and different state of facts. It depends, therefore, so essentially upon the particular circumstances of each case, with all their distinct and varying phases and bearings, as they have appeared to the lower court( at the trial and throughout the conduct of the cause, in determining whether diligence has been-used in any particular instance, that this court should hesitate to disturb a ruling upon this ground where it has any substance whatever upon which to rest. The presumption is that the discretion has been properly exercised, and that presumption must be overcome by a clear want of facts before the order will be disturbed. (See Jones v. Singleton, 45 Cal. 92; Baker v. Joseph, 16 Cal. 180; Kenezleber v. Wahl, 92 Cal. 202.) There is no such want in the showing made here. The action was to recover for surgical and medical services rendered defendant while suffering from a broken leg. The complaint contained two counts, one upon an account stated and the second upon quantum meruit. Both the existence of an account stated and the value of the services were denied. At the trial there arose a sharp conflict in the evidence as to the value of the services, but the positive testimony upon the question whether the account had become a stated account was confined solely to that given by the plaintiff, on the one part and the defendant on the other, and between whom there was a contradiction, the plaintiff testifying that defendant made no objection to the amount of his bill — at least until some time after it was rendered — and defendant testifying that he had. It did appear, however, that the defendant immediately discharged plaintiff upon receiving his bill, and shortly after sent him a check for five hundred dollars; and defendant, within a day or so thereafter, had himself removed from the town of Monterey, where he then was, to San Francisco, and put in charge of another physician. The court found the account had become stated, and gave judgment for the full amount demanded. The newly discovered evidence is all ad