Simper v. Carroll

Newly-discovered evidence to be available on a motion for a new trial must be neither cumulative nor such as might with reasonable diligence have been obtained at- the trial. All of the alleged newly-discovered evidence is open to one or both of these objections.

If the defendant caused Ihe arrest of the plaintiff, then what the *388police said and did in her presence while she was detained in pursuance of such arrest was competent to bind the defendant, especially when it was the natural and probable consequence of the arrest as in this case.

There was no error in. permitting plaintiff to testify to her mental and nervous condition as the direct result of the arrest. The following question was put to the plaintiff on cross-examination:

“Are you prosecuting this suit to get money or to get your reputation back?”

It is immaterial what the motive of alitigant may be in prosecuting an action provided the facts upon which it is based are sufficient in law. The objection to the question was properly sustained.

The question ruled out on page 38 of the bill of exceptions, is covered substantially by the.next question, and hence no prejudice resulted. The two questions at page 124 of the bill were properly ruled out because calling for a conclusion and not a fact. The testimony at pages 131 to 137 was admissible in rebuttal.

If the defendant unlawfully detained the plaintiff in his store until the police came, whether at his or her request, and whether she was searched at his or her own request, such unlawful detention was the efficient cause and rendered the defendant liable. Hence that part of the charge of the court excepted to by counsel for defendant correctly states the law.

We find no prejudicial error in the record, except that the damages in the absence of malice are excessive, and a remittitur of $200 will be ordered, and if not consented to the judgment will be reversed.