Waller v. Graves

Church, Ch. J.

The most aggravated portion of the libel complained of, is that by which the plaintiff, Graves, was exposed to public reproach and contempt, as having, in the character and spirit of a rapacious creditor, shamefully abused Sylvanus Merwin, his son-in-law, and his wife and children.

This charge was libellous, and, in a good degree, gave sting and character to the whole publication, and was the chief ground of the plaintiff’s claim to the recovery of damages at the trial, and upon which the issue of the cause was supposed much to depend, as we infer from the allegations in this petition, and found by the court to be true.

The ground of this application for a new trial, is, that from evidence newly discovered, the petitioner, Waller, can prove, that the language “ rapacious creditor,” was never used by him, in composing the article, nor approved by him, but without his knowledge, was inserted by the editor of the newspaper in which it was published, and for which unauthorized act, he ought not to be made responsible. If such is the real truth, and if the jury had so believed upon the trial, we think the result would and should have been a different one.

There is, and there should be, a reluctance in courts to disturb the verdicts of juries, unless in cases where it is most manifest, that either the law has been perverted or mistaken, or that the losing party has not had a full and impartial hearing. It is easy for a party to claim the discovery of new evidence, and it is hard that his opponent should be compelled to submit to the expence of a second trial, when such claim is either unfounded, or the result of negligence in the first preparation. We feel all this, in the present case, and with much hesitation have formed the opinion now declared.

To entitle a party to a new trial for newly discovered evidence, it is indespensable that he should have been diligent in his efforts fully to prepare his cause for a trial, at first; and if the evidence now relied upon could have been known before the trial, by great diligence, and was not, a new trial will not be granted. Here has been our greatest doubt, in this case. But it appears, that the libellous paper was drawn up chiefly by Sylvanus Merwin, and Waller cannot fairly be presumed to have known or noticed any peculiarity in its phraseology. In hearing it read, he was probably more intent on the narrative of facts, than on the language used in the composition, and therefore, was not put upon enquiry in regard to it, until Averill, the editor, had gone beyond his reach, Averiil had not disclosed the facts which he knew, to any body, and while in the vicinity, had every motive to conceal his knowledge of the matter. Under these peculiar circumstances, we cannot say, that Waller omitted any reasonable diligence in preparing his cause for trial.

So if the evidence now claimed to be newly discovered, is merely cumulative evidence, we cannot grant a new trial, unless the effect of it will he to render clear and positive, that which was before equivocal and uncertain.

By cumulative evidence is meant additional evidence of the same general character, to the same fact or point which was the subject of proof before. Watson v. Delafield, 2 Caines, 224. Reed v. McGrew, 1 Hammond, 386. Smith v. Brush, 8 Johns. R. 84. Pike v. Evans, 15 Johns. R. 210. The People v. The Superior Court, 5 Wend. 114. S. C. 10 Wend. 285. Guyot v. Butts, 4 Wend. 579. Gardner v. Mitchell, 6 Pick. 114. Chatfield v. Lathrop, Id. 417. Parker v. Hardy, 24 Pick. 246.

The fact in dispute, on the trial of this cause, was, whether the words, " rapacious creditor," were a part of the libellous writing, when it was signed by Waller. That they were not, was the most material ground of defence; and this ground was supported, by the testimony of Merwin alone, who wrote the article originally, and who swore that these words were not then in it.

From some of the cases on this subject, it may perhaps be inferred, that courts have supposed all additional evidence to be cumulative merely, which conduced to establish the same ground of claim or defence before relied upon, and that none would be available, for a new trial, unless it disclosed or established some new ground. But this does not seem to us to be the true rule, as recognized in the best considered cases.

There are often various distinct and independent facts going to establish the same ground, on the same issue. Evidence is cumulative which merely multiplies witnesses to any one or more of these facts before investigated, or only adds other circumstances of the same general character. But that evidence which brings to light some new and independent truth of a different character, although it tend to prove the same proposition or ground of claim before insisted on, is not cumulative within the true meaning of the rule on this subject : as in the present case, Merwin testified only, that the libel, as printed and published, was not like the paper written by him and signed by Waller, in the particular referred to. But now appears a new fact, entirely independent of the testimony of Merwin-one, which did not exist, at the time Merwin speaks of; which is, that another person, without the knowledge or consent of either Waller or Merwin, inserted the objectionable words into the article, which appeared in the newspaper.

Suppose a question on trial to be, whether the note of a deceased person has been paid, and witnesses have been introduced testifying to various facts conducing to prove such payment, and after a verdict for the plaintiff, the executor should discover a receipt or discharge in full, or had discovered that he could prove the deliberate confession of the plaintiff of the payment of the note. There could be no question, in such a case, but a new trial should be granted, although the new facts go to prove the former ground of defence.

But there is another reason, why we believe this new evidence is available. Merwin testified, that the words “ rapacious creditor,” were not in the paper signed by Waller; the testimony of John Gaylord conduced strongly to show that they were ; and probably from this conflict of proof, the jury disregarded this ground of defence. This new evidence would now come in, to render certain a turning point in the case, which had been left in doubt before. 1 Sw. Dig. 787. Watts, adm’r. v. Howard, adm’r. 7 Metc. 478.

We shall therefore advise a new trial.

In this opinion, Waite, Storrs, and Hinman, Js. concurred.

Ellsworth, J. concurred in the principles advanced in such opinion, but did not think them applicable to the present case ; and for that reason, would not grant a new trial.

New trial to be granted.