Forney v. Cox

70 Pa. Super. 530, 1918 Pa. Super. LEXIS 297

Opinion

Opinion by

Williams, J.,

There is little in this case to differentiate it from House v. Cox, 70 Pa. Superior Ct. 531, and it is ruled in all but one point by that decision. Counsel contends that a new trial should have been granted because the physician who treated Mrs. Forney failed to read the full text of her hospital record, reading, at the trial, the portion mentioning a diagnosis of fractured skull, and failing to read the portion stating that an X-ray failed to show a fracture.

The record was in court, defendant’s counsel had access to it and could have known of the omission. It is not, therefore, such after-discovered evidence as would compel the granting of a new trial: see Marine Coal Co. v. P., McK. and Y. R. R. Co., 246 Pa. 478. There is no indication that plaintiffs or counsel countenanced any concealment. The court charged that while there was some evidence of a fractured skull, “Mrs. Forney was kept quiet for three weeks and there was no evidence of any injury to the brain and she was discharged.” No abuse of discretion appears in the court’s refusal of defendant’s motion.

The judgment is affirmed.