(dissenting).
I dissent.
The result reached by the majority is bottomed on their ■conclusion that plaintiff’s testimony at the trial concerning his production and his method of measuring it is false. This conclusion is directly contrary to that expressed by the jury in their verdict and the trial judge in his order denying a new trial.
The majority reach this contrary conclusion on the basis of three affidavits of former employees of plaintiff. Defendant secured these affidavits several days after the conclusion of the trial and the adverse jury verdict. These affidavits indicate that these employees were paid on a “count” basis and *478that such “count” was reported to plaintiff’s foreman rather than to plaintiff himself. This information, if believed, tends to rebut plaintiff’s testimony at the trial and his ledger' record introduced in evidence indicating “number of trees” or “tree count” as a basis rather than “count” or “log count”. To import superior probative value and credibility to statements contained in ex parte affidavits secured by a litigant following-an adverse jury verdict over testimony given at the trial by a witness subjected to cross-examination is wholly unwarranted in my view.
Additionally, the majority opinion constitutes a clear departure from controlling legal precedent governing new trials. Here the majority has awarded defendant a new trial on the basis of surprise, which ordinary prudence could not have guarded against (section 93-5603(3), R.C.M.1947) coupled with newly discovered evidence which defendant, in the exercise of reasonable diligence, could not have discovered and produced at the trial (section 93-5603(4), R.C.M.1947). In my view there was no surprise here, the newly discovered evidence was merely cumulative and thus insufficient to authorize a new trial, and in any event defendant is foreclosed by his failure to request a continuance.
The record discloses that defendant was not surprised but on the contrary knew plaintiff’s position long before the trial. The deposition of Gerald H. Delin, defendant’s superintendent, which was taken more than 4 months prior to trial, indicates that he was aware that the basis of plaintiff’s records and computations was not “log count” but “tree count.” Two examples will suffice:
“Q. Now, these advances that you paid to Mr. Morris, these were advances based on his log count— A. Tree count—
“Q. His tree count to you, is that correct? A. Yes, sir.
“Q. They were based on that? A. Yes.” and again:
*479“Q. And they base their figures on actual log count, is that right? A. Actual tree count.
“Q. Tree count, I mean— A. Yes.”
Additionally plaintiff’s deposition was taken prior to trial, a pretrial conference was held, and it was patently evident that the parties had used different methods of measurement of plaintiff’s production. How could defendant be surprised by plaintiff’s testimony at the trial concerning measurement •of his production under these circumstances?
The so-called newly discovered evidence of defendant was merely cumulative in character in any event. The testimony of Herbert Watts, a former employee of plaintiff called as a witness for defendant at the trial, was to the effect that plaintiff’s fallers were paid according to “counts”. Gerald H. Delin, defendant’s superintendent, testified to like effect. This is the same testimony that is contained in the affidavits of the three former employees of plaintiff on which basis a new trial is sought. The trial court made a specific finding to this effect in its order denying a new trial:
“This court holds, however, that the ‘new’ testimony of the Defendant, not produced, is not new testimony, but would be merely an accumulation of the testimony produced at the trial * *
Testimony that is merely cumulative in character has uniformly been held insufficient to authorize a new trial. Apostel Const. & Lumber Co. v. Radulovich, 115 Mont. 43, 139 P.2d 234; Ebaugh v. Burns, 65 Mont. 15, 210 P. 892; Jenkins v. Kitsen, 62 Mont. 515, 205 P. 243.
But perhaps the most compelling reason why a new trial is not authorized here is that defendant did not act promptly and claim the relief he now seeks at the earliest opportunity. Instead of moving for a continuance at the time the alleged surprise took place to secure rebutting evidence, defendant chose to proceed with the evidence he had and submit his ease to the jury. Now after an adverse jury verdict, he seeks *480a new trial to relitigate the very issue he chose to submit to-the jury in the first instance under the existing posture of the ease.
In Hill v. McKay, 36 Mont. 440, 93 P. 345, this Court set up various requirements that must be met before a party is entitled to a new trial on the ground of surprise, two of which are: (1) that the party seeking a new trial has acted promptly and claimed relief at the earliest opportunity, and (2) that he has used every means reasonably available at the time of the surprise to remedy the situation. Neither requirement is met in the instant case.
The majority opinion justifies a new trial on the basis that defendant did Avhat he could to avert disaster by introducing other testimony, citing the California case of Whitfield v. Debrincat, 18 Cal.App.2d 730, 64 P.2d 960, in support. This line-of reasoning presupposes that plaintiff has testified .falsely and that defendant’s counsel has made reasonable attempts to-guard against it and relies on these attempts. This is not the-situation in the instant case. Here the jury chose to believe-plaintiff and rejected the premise that he was testifying falsely. Under such circumstances it is hardly the function of this-Court to weigh the credibility of plaintiff as a witness and arrive at an opposite conclusion from that of the jury.
For the foregoing reasons, I consider it a miscarriage of justice to grant defendant a second trial to relitigate the very issues that the jury foreclosed against it at the first trial.