Pociopa v. Olson

Michigan Court of Appeals

Pociopa v. Olson

164 N.W.2d 413, 13 Mich. App. 324, 1968 Mich. App. LEXIS 1065

CourtMichigan Court of Appeals

DecidedSeptember 24, 1968

DocketDocket 2,002

StatusPublished

Cited by7 cases

This text of 164 N.W.2d 413 (Pociopa v. Olson) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pociopa v. Olson, 164 N.W.2d 413, 13 Mich. App. 324, 1968 Mich. App. LEXIS 1065 (Mich. Ct. App. 1968).

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Opinions

J. H. G-illis, J.

Plaintiffs sought recovery for damages sustained when Daniel Pociopa was struck by an automobile driven by defendant Willard Olson and owned by defendant Eino Olson. Daniel Poci[326]*326opa was operating a motorbike on US Highway 2 at the time of the accident; and, along with a companion cyclist, Robert Weeks, was riding in the right hand lane or the right side or shoulder of the highway. Defendants’ theory is that Daniel made an unexpected and sudden left turn into the path of defendants’ automobile, without due diligence and without proper observation.

Plaintiff cyclist and defendant driver were both 15 years old at the time of the accident. Testimony as to the location of plaintiff’s motorbike just before making the turn was a matter of sharp controversy at trial. The disputed testimony was resolved by the jury in favor of defendants and a judgment of no cause of action was entered upon the verdict of the jury.

A key defense witness at trial was Prank Marinoff who was purportedly, and by his own testimony, a passenger in defendants’ automobile at the time, and who testified that Daniel was riding on the right shoulder and turned in front of defendants’ automobile.

Subsequent to the jury verdict plaintiffs made a motion for a new trial based on newly discovered evidence. The evidence was testimony of certain witnesses to the accident who would testify that Marinoff was not present in the automobile at the time of the accident. The trial judge conducted a hearing on the motion pursuant to GCR 1963, 527.3, at which plaintiffs’ witnesses testified to their observations at the time. The trial judge denied the motion and assigned as his reason therefor (GCR 1963, 527.7) that “intrinsic fraud or perjury is not the basis for a new trial based on newly discovered evidence.”

This is not a correct statement of the law as to relief from a judgment in the pending action. See [327]*327the author’s comments to GCR 1963, 528, at 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed) pp 184, 185. However, under the facts presented by the record, the motion for new trial was properly denied, albeit for the wrong reason, and the decision of the trial judge is affirmed.

Grounds for a new trial based on newly discovered evidence are found in GCR 1963, 527.1(6). The standard for application of this rule has been stated in the committee comment to rule 527 and in Reardon v. Buck (1952), 335 Mich 318, 321, 322, as:

“The trial judge correctly applied the rule stated in Canfield v. City of Jackson, 112 Mich 120, which is as follows: ‘To entitle one to a new trial upon this ground it should be shown: First, that the evidence, and not merely its materiality, be newly discovered ; second, that the evidence is not cumulative merely; third, that it be such as to render a different result probable on a retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial.’

“The granting of a new trial on the ground of newly-discovered evidence is within the sound discretion of the trial court, with which we will not interfere, unless there has been a palpable abuse of that discretion. Chicago & Grand Trunk R. Co. v. Genesee Circuit Judge (1891), 89 Mich 549. See also, authorities cited in Wilson v. Johnson (1917), 195 Mich 94, 101.”

To like effect is the recent decision of this Court in Graham v. Inskeep (1967), 5 Mich App 514, 523, in which we stated that newly discovered evidence is not grounds for a new trial where it is merely to impeach.

In the present ease, not only is the newly brought evidence solely to impeach, but it is cumulative as to matters already adduced by cross-examination at trial. Moreover, the hearing indicates that these [328]*328witnesses were known to plaintiffs at trial, that their testimony was available all along, and that with due diligence the so-called newly discovered evidence could have been produced at tidal.

The trial court did not abuse its discretion in denying the motion. Graham v. Inskeep, supra; Township of Commerce v. Rayberg (1967), 5 Mich App 554.

Affirmed. Costs to appellees.

McGregor, J., concurred with J. H. Gillis, J.

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J. H. G-illis, J.

Plaintiffs sought recovery for damages sustained when Daniel Pociopa was struck by an automobile driven by defendant Willard Olson and owned by defendant Eino Olson. Daniel Poci[326]*326opa was operating a motorbike on US Highway 2 at the time of the accident; and, along with a companion cyclist, Robert Weeks, was riding in the right hand lane or the right side or shoulder of the highway. Defendants’ theory is that Daniel made an unexpected and sudden left turn into the path of defendants’ automobile, without due diligence and without proper observation.

Plaintiff cyclist and defendant driver were both 15 years old at the time of the accident. Testimony as to the location of plaintiff’s motorbike just before making the turn was a matter of sharp controversy at trial. The disputed testimony was resolved by the jury in favor of defendants and a judgment of no cause of action was entered upon the verdict of the jury.

A key defense witness at trial was Prank Marinoff who was purportedly, and by his own testimony, a passenger in defendants’ automobile at the time, and who testified that Daniel was riding on the right shoulder and turned in front of defendants’ automobile.

Subsequent to the jury verdict plaintiffs made a motion for a new trial based on newly discovered evidence. The evidence was testimony of certain witnesses to the accident who would testify that Marinoff was not present in the automobile at the time of the accident. The trial judge conducted a hearing on the motion pursuant to GCR 1963, 527.3, at which plaintiffs’ witnesses testified to their observations at the time. The trial judge denied the motion and assigned as his reason therefor (GCR 1963, 527.7) that “intrinsic fraud or perjury is not the basis for a new trial based on newly discovered evidence.”

This is not a correct statement of the law as to relief from a judgment in the pending action. See [327]*327the author’s comments to GCR 1963, 528, at 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed) pp 184, 185. However, under the facts presented by the record, the motion for new trial was properly denied, albeit for the wrong reason, and the decision of the trial judge is affirmed.

Grounds for a new trial based on newly discovered evidence are found in GCR 1963, 527.1(6). The standard for application of this rule has been stated in the committee comment to rule 527 and in Reardon v. Buck (1952), 335 Mich 318, 321, 322, as:

“The trial judge correctly applied the rule stated in Canfield v. City of Jackson, 112 Mich 120, which is as follows: ‘To entitle one to a new trial upon this ground it should be shown: First, that the evidence, and not merely its materiality, be newly discovered ; second, that the evidence is not cumulative merely; third, that it be such as to render a different result probable on a retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial.’

“The granting of a new trial on the ground of newly-discovered evidence is within the sound discretion of the trial court, with which we will not interfere, unless there has been a palpable abuse of that discretion. Chicago & Grand Trunk R. Co. v. Genesee Circuit Judge (1891), 89 Mich 549. See also, authorities cited in Wilson v. Johnson (1917), 195 Mich 94, 101.”

To like effect is the recent decision of this Court in Graham v. Inskeep (1967), 5 Mich App 514, 523, in which we stated that newly discovered evidence is not grounds for a new trial where it is merely to impeach.

In the present ease, not only is the newly brought evidence solely to impeach, but it is cumulative as to matters already adduced by cross-examination at trial. Moreover, the hearing indicates that these [328]*328witnesses were known to plaintiffs at trial, that their testimony was available all along, and that with due diligence the so-called newly discovered evidence could have been produced at tidal.

The trial court did not abuse its discretion in denying the motion. Graham v. Inskeep, supra; Township of Commerce v. Rayberg (1967), 5 Mich App 554.

Affirmed. Costs to appellees.

McGregor, J., concurred with J. H. Gillis, J.

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164 N.W.2d 413, 13 Mich. App. 324, 1968 Mich. App. LEXIS 1065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pociopa-v-olson-michctapp-1968.

Opinions

J. H. G-illis, J.

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