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latter evidence was more specific, stated facts attending the
carrying away of the goods, subsequent in point of time to tho
status of the case on the subject of the existence of the goodh
as left by the testimony on the former trial, showed that. the
conveying away was secretive, also was positive proof, if true,
of the place to which the goods were taken, etc.. in short was
more circumstantial and was evidence of a different kind and
character from that introduced on the subject of the goods at
the former trial.
New Trial — Newly Discovered Evidence — Due Diligence, — Where
a witness whose testimony is relied upon as newly discovered,
although a relative of the party seekiBg the new trial, had for
ten months prior to the trial been living in another State, and
was living there at the time of the trial, and the character of
a material part of his evidence was such that it was not prob-
able that by the exercise of reasonable forethought it would
have occurred to the party to inquire of the witness concern-
ing it, the non-production of his testimony at the trial does not
show a want of diligence.



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292 Baesa v. Katoe, 121 Va. 290.

Opinion.

Error to a judgment of the Circuit Court of Wise camii-
ty, in an action of assumpsit. Judgment for plaintiff. De-
fendant assigns error.

Reversed.

The opinion states the case.

R. T. Irvime, for the plaintiff in error.

Vica/rs & Peery and Morton & Parker, for the defendant
in error.

Sims, J., delivered the opinion of the court.

This case is an action of assumpsit by the defendant in
error — ^hereinafter referred to as plaintiff — against the
plaintiff in error — ^hereinafter referred to as defendant —
seeking to recover a balance of $1,544.50 claimed by plain-
tiff to have been due him by defendant upon a correct set-
tlement of accounts growing out of numerous transactions
beween them, extending through a period of about two
years, during which the plaintiff claims to have paid over
to defendant an aggregate of some $10,800.00. The plain-
tiff was engaged in the business of a peddler, for which
the defendant furnished him credit, the latter buying goods
from wholesale houses for plaintiff, turning over the goods
to him from time to time as he needed them, and the plain-
tiff, as he came in from his peddling trips, turning over
money in small sums to defendant ; and there were certain
deposits of money in bank by plaintiff to the credit of de-
fendant, during an absence of defendant and also the pur-
chase of a lot of land by defendant for plaintiff and pay-
ments of purchase money therefor in installments and
there were other alleged transactions between them.

Both plaintiff and defendant are Syrians and for the



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Barsa v. Kator, 121 Va. 290. 293

Opinion.

most part so were the witnesses in the case on its trial,
the character and veracity of many of them being made
the subject of question in the case.

There was a trial by jury resulting in a verdict for the
plaintiff for said sum of $1,544.50, which the defendant,
at a subsequent term, moved the trial court to set aside
on the grounds of after discovered evidence and of im-
proper conduct of the jury. Affidavits were filed for and
against such motion and the court overruled the motion
and entered judgment for the plaintiff in accordance with
the verdict of the jury. This action of such court is made
the sole assignment of error in the case.

A number of instances of after discovered evidence are
relied on to sustain said motion, as well as the alleged mis-
conduct of the jury, but in the view we take of the case,
only the after discovered evidence bearing upon one issue
need be considered, and the other instances of alleged after
discovered evidence and the alleged misconduct of the jury
need not be considered.

The incident upon which the after discovered evidence
which we will consider bears, is that of the carrying away
by plaintiff of goods from his room in defendant's apart-
ments, partly by night and in a secretive way by day.
These goods, if they were so carried away, were a portion
of those obtained by plaintiff of defendant as aforesaid,
and were in the hands of the former at the close of his
transactions with the latter and credit for their value
should have been given by the plaintiff to defendant. Their
Value was claimed by defendant to be not less than eight
or nine hundred dollars. The plaintiff gave the defendant
no credit whatever for any of such goods. In his testi-
mony in the case on his first examination the plaintiff
made no mention of his having or not having any goods
on hand at the close of his transactions with defendant,
stating the transactions between himself and the defen-



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294 Barsa v. Kator, 121 Va. 290.

' OpinioiL

dant, and the result of them, as if there were no eroods
whatever left in his hands at the close of such transactions
derived by him from the defendant. In his testimony in
the case, in his own behalf, the defendant first made men-
tion of his claim that the plaintiff had on hand at the
close of the transactions aforesaid such goods, and that he
left defendant's home with such goods of "not less than
eight or nine hundred dollars" value. Defendant in his
testimony on this subject stated the bare fact that plain-
tiff left his house with such goods. Frank Carter, a wit-
ness for defendant, testified on this subject that he saw
the goods in question before the plaintiff left the home of
defendant, describing what kind of goods they were, fixed
their value, in his judgment, and stated that the plaintiff
"took two or three loads (the) day he moved out." That
witness was in defendant's home at the time. That the
plaintiff "took the goods and went out," witness staying in
the house. "He come in and took the goods and leave the
room and come back after another load." That witness
thotcght plaintiff took the goods to Mike Barsa's, but that
he didn't know where he took them.

The plaintiff in rebuttal testified in effect that he had
no goods whatever left in his hands as the result of the
transactions between him and the defendant and denied
that he had any goods for some time afterwards until he
got credit from another Syrian and began peddling in a
small way, at first with two dozen hose, then with some old
country pictures.

The alleged after discovered evidence, which we shall
consider as aforesaid, consists, as shown by their affi-
davits, of testimony which will be given, if they are al-
lowed to testify, by five witnesses, none of whom were wit-
nesses on the trial of this case, namely : H. R. Stone, G. C.
Young, F. M. Strong, a Justice of the Peace, F. A. Mahan,



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Barsa v. Kator, 121 Va. 290. 295

Opinion.

and Joe Hannie. Briefly stated, this testimony, in so far
as it would bear on the issue of fact in question, would be,
in eflFect, as follows :

Stone would testify that at the time in question, follow-
ing the ''split up'' between plaintiff and defendant, he saw
the plaintiff "make several trips from George Barsa's"
(the defendant) *to Mike Barsa's carrying a peddler's
pack each time, which seemed to be filled as much as usual.
On that occasion I saw him take several loads a day and
he tiien went along the alley immediately in the rear of
the stores and between the stores and the railroad. I also
saw him take one or more loads in the night time from
George Barsa's to Mike Barsa's along Main street, but
whenever he went in the day time he seemed to go the back
aUey."

Young would testify that at the time in question, "one
night about eleven o'clock" he saw the plaintiff pass "down
the street in the direction of Mike Barsa's house with a
big pack on his back."

Strong would testify that at the time in question the
plaintiff came into the place of business of F. A. Mahan
and he "heard Mahan say to him in substance that he
ought to set up a store for himself as he had plenty of
goods," and that plaintiff said: "I have got plenty of
goods but I don't want no store." That to a question of
Mahan which Strong thought was whether plaintiff was
moving down to Mike Barsa's, the plaintiff answered "yes."

Mahan would testify that at the time in question plain-
tiff was in his butcher's shop and told him that "he was
going tomorrow and go down to Mike Barsa's" and that af-
fiant Mahan said to the plaintiff: "Toney, you seem to have
plenty of goods, you ought to set yourself up a store," to
which the plaintiff replied: "I have got plenty of goods.



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296 Barsa v. Kator, 121 Va. 290.

OpinioxL

but I don't want no store." That plaintiff said he "was go-
ing to move down to Mike Barsa's and take his goods
there." •

Joe Hannie would testify that at the time in question
the plaintiff moved the goods in question "to Mike Barsa's
and I helped him some in moving. I asked him at one
time how much goods he had. He said about $1,000.00
worth. I asked him to sell me $100.00 worth for me to
peddle with and told him I would pay him cash money, but
he said no, he would not sell them to me. I asked him if
they were not his goods and if Mr. Barsa had any interest
in them. I thought maybe he had not paid Mr. Barsa for
the goods, and he said no, they were all his goods, that he
had paid Mr. Barsa for them and he did not owe Mr. Barsa
anything on them and he said Mr. Barsa did not owe him
anything. He said Mr. Barsa had quit buying goods for
him. I carried two loads to Mike Barsa's for him. One
time in the day I went with him and we went down the
back alley between the houses; the next time was in the
night and we went down Main street to Mike Barsa's store.
Both times I turned over my load to Mike Barsa and he
took them into the house."

The defendant by his affidavit states in substance that
he had no knowledge of said after discovered evidence
at the time of the trial and could not by the exercise of rea-
sonable diligence have obtained such knowledge.

Mike Barsa in a counter affidavit stated that the plain-
tiff brought no goods to his place.

The rules on the subject of granting a new trial are well
settled. As stated in 2 Barton's L. Pr., p. 734, in order to
afford a proper ground for granting a new trial the evi-
dence —

"1. Must have been discovered since the former trial;

"2. Be such as by reasonable diligence on the part of the
defendant could not have been secured at the former trial ;



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Barsa v. Kator, 121 Va. 290. 297

Opinion.

"3. Must be material . in its object, and not merely
cumulative, corroborative and collateral; and

"4. Must be such as ought to produce, on another trial,
an opposite result on the merits;

"5. Must go to the merits of the case, and not merely to
impeach the character of a former witness.

"Unless these circumstances concur a new trial is never
granted on the ground of after discovered evidence, and
even where they do concur a new trial is granted only with
great reluctance and with special care and caution."

It appears not only from the affidavit of the defendant
but also from the nature of the said after discovered evi-
dence itself, above noted, that such evidence falls within all
of the rules above stated. (See also authorities cited on
this subject in 10 Encyl. Dig. Va. & W. Va. Rep., pp. 447-
451.)

It is contended for plaintiff that as Joe Hannie "was a
relative of defendant, engaged also in peddling, lived at
Jenkins, scarcely thirty miles from Appalachia" (the home
of defendant) "it is unreasonable to suppose that the de-
fendant did not or could not have known of such informa-
tion as is submitted by" this affiant, "long before the trial ;
especially is this true when it is considered that this case
had been pending for over two years." But for ten months
prior to the trial this affiant had been living at "Jenkins,"
(which is in Kentucky) ; was living there at the time of
the trial, and hence he had been for this time living away
from the defendant and the character of a material part
of this evidence is such that it is not probable that by the
exercise of reasonable forethought it would have occurred
to the defendant to inquire of this affiant concerning it.

It is contended for plaintiff that the entire evidence
above noted is purely cumulative, corroborative and in im-
peachment of former witnesses and that it does not in any
sense go to the real merits of the controversy, and could
not by any possibility produce on another trial any result

38

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298 Barsa v. Kator, 121 Va. 290.



Opinion.



other than that reached by the jury in this case. In this
connection it should be noted that no witness on the trial
of the case testified to the same kind and character of facts
as those which, are covered by the afterdiscovered evi-
dence aforesaid.

As said by Christian, J., in delivering the opinion of this
court in St John's Ex' or v. Alderson, 32 Gratt. (73 Va.)
140; "♦ ♦ ♦ The kind and character of facts offered as nei^-
ly discovered evidence make the true distinction. The facts
offered may tend to prove the same issue," (as the evidence
introduced on the former trial) "and yet be so dissimilar in
kind as to afford no pretence for saying they are merely
cumulative."

Again, quoting from the case of Chiyot v. Butts, 4 Wend.
(N. Y.) 579, the same learned judge in such opinion says:
"♦ ♦ ♦ The courts have sometimes used expressions seeminsr
to warrant the inference that proof which goes to estab-
lish the same issue that the evidence on the first trial was
introduced to establish is cumulative. If the evidence newly
discovered, as well as that introduced on the trial, had
a direct bearing on the issue, it may be cumulative. But -we
are not to look at the effect to be produced as furnishing: a
criterion by which all doubts in relation to this kind of
evidence are to be settled. The kind and character of the
facts make the description" (evidently a misprint, for dis-
tinction). "It is their resemblance that makes them cumu-
lative. The facts may tend to prove the same proposition,
and yet be so dissimilar as to afford no pretence for say-
ing they are cumulative." See monographic note 32 Gratt.
Va. Rep. Anno., p. 60, and authorities cited.

So in the instant case while the statement of fact testi-
fied to by the defendant and his witness, Carter, tended to
prove the same proposition which the after discovered evi-
dence aforesaid tended to prove, namely, that there were
goods in possession of the plaintiff derived from his trans-



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Babsa v. Kator, 121 Va. 290. 299

Opinion.

actions with the defendant and for which the latter should
have had credit, the former evidence consisted of the bare
statements of the fact of the existence of such goods and
of the plaintiff having left the home of defendant with
them or of his having carried them away; the latter evi-
dence was more specific, stated facts attending the carry-
ing away of the goods, subsequent in point of time to the
status of the case on the subject of the existence of the
goods as left by the testimony on the former trial, showed
that the conveying away was secretive, also was positive
proof, if true, of the place to which the goods were taken,
etc., in short was more circumstantial and was evidence
of a different kind and character from that introduced on
the subject of the goods at the former trial.

Again: The admissions of the plaintiff alleged in the
affidavit of Hannie is not cumulative but independent evi-
dence. Preston v. Otey, 88 Va. 491, 14 S. E. 68.

The after discovered evidence in question was therefore
not cumulative. Nor, for the same reasons, was it merely
corroborative, or collateral, or in impeachment of former
witnesses.

On the question of whether the newly discovered evi-
dence under consideration ought on another trial to pro-
duce an opposite result on the merits, it seems to us mani-
fest that if true it ought to do so. It bears directly on the
issue of an important fact in the case, going to the extent
of $800 or $900 reduction of the verdict of $1,544.50, if
found to be true. It is supported by affidavits of witnesses,
several of whom are not Syrians and who seem to be men
of character and standing and free from all prejudice or
interest in the case. If this evidence is true, a manifest
injustice has been done the defendant. Hence, while this
court is reluctant and indisposed to come to a different
conclusion from that of a trial judge in the exercise of the
discretion vested in the latter in the matter of granting or



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300 Barsa v. Kator, 121 Va. 290.

Opinion.

refusing to grrant a new trial, we are constrained to reach
a different conclusion in the case before us from that
reached in the court below, and it seems to us that a jury
should pass upon the credibility of the after-discovered
evidence aforesaid.

Therefore, for the foregroingr reasons we are of opinion
that there was error in the action of the trial court in re-
fusing to grant a new trial, and the judgment for that rea-
son must be reversed.

Reversed,



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Blair v. Broadwatee, 121 Va. 301. 301

Opinioiu



i^tautttotL

Blair v. Broadwater.

September 20, 1917

1. Automobile — Dangerous Machine — Negligence Per Se, — An auto-

mobile is not such a dangerous machine or agency as to make
applicable to it the rules requiring extraordinary care in the
use and control of instrumentalities which are dangerous
per se.

2. Automobiles — Pa/rent and Child — Master and Servant — Case at

Bwr. — ^In an action for damages against a father by plaintiff,
who was struck by an automobile owned by the father and
operated by his daughter, a minor nineteen years of age, the
evidence showed that the father bought and kept the car for
the use and pleasure of himself and family. He was a deputy
sheriff, and also used the car sometimes in the discharge of
his official duties. The daughter was a careful and expe-
rfenced driver, and on the day of the accident she sought and
obtained permission from her father to use the car that after-
noon for the pleasure and entertainment of herself and her
cousin. It affirmatively appeared that the daughter was not
using the car on any errand or business of the father.
Held: That the relationship standing alone does not render the
father liable for the acts of his minor daughter; that such
liability must result from the relation of master and servant
or principal and agent, and the absence of that element of
responsibility in this case affirmativdy appears.

Error to a judgment of the Circuit Court of Scott county,
in an action of trespass on the case. Judgment for de-
fendant. Plaintiff assigns error.

Affirmed.

The opinion states the case.

W. S. Cox and J. P. Corns, for the plaintiff in error.



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302 Slair v. Broadwater, 121 Va, 301.



Opinion.



Coleman & Carter, for the defendant in error.
Whittle, P., delivered the opinion of the court.

Plaintiff in error, Blair, while walking along a public
highway near Gate City, was struck by an automobile
owned by Broadwater and operated by his daughter, a
minor nineteen years of age, and brought this action to re-
cover damages from the father for the alleged negligence
of his daughter.

The evidence showed that Broadwater bought and kept
the car for the use and pleasure of himself and family. He
was a deputy sheriff, and also used the car sometimes about
the discharge of his official duties. The daughter was a
careful and experienced driver, and on the day of the ac-
cident she sought and obtained permission from her father
to use the car that afternoon for the pleasure and enter-
tainment of herself and her cousin. It affirmatively ap-
peared that the daughter was not using the car on any er-
rand or business of the father, but was driving it alone for
the pleasure and entertainment of herself and friend.

The controlling question in the case is presented by op-
posing instructions requested by the plaintiff and defen-
dant, respectively. The instruction offered by the former
embodied the proposition that if the defendant purchased
the automobile for the use and pleasure of himself and
family, and at the time of the accident his daughter was a
member of his family and under twenty-one years of age,
and was using the automobile for her own pleasure and the
entertainment of her friend, with the knowledge and con-
sent of the defendant, then the defendant was liable for
the negligence of his daughter to the same extent and in
like manner as if he, personally, at the time of the acci-
dent, had been driving the automobile. The opposing in-
struction requested by the defendant, in effect, was, that



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Blair v. Broadwater, 121 Va. 301. 303

OpinioxL

in order to render the defendant liable for the negligence
of his daughter, it must have appeared by a preponderance
of the evidence that, at the time of the accident, she was
operating the automobile in transacting some business, or
in the management of some affair of the defendant and by
his authority.

The court rejected the prayer of the plaintiff and gave
the instruction requested by the defendant, which ruling
resulted in a verdict and judgment for the defendant.

Two theories are advanced why the owner of an automo-
bile should be liable for injuries inflicted upon third per-
sons by his minor child while using the machine, with his
consent, for the child's own business or pleasure, namely :

1. Because the parent is responsible for intrusting a
dangerous machine to the hands of his child. This lia-
bility, it will be observed, does not depend upon the child's
negligence, but upon that of the parent in permitting the
child to use a dangerous instrumentality.

2. The second theory proceeds upon the assumption that
as the parent originally purchased the machine for the use
and pleasure of the family, the use of it by the child with
the parent's permission for its own pleasure Is but apply-
ing it to the business for which it was bought ; and, there-
fore, the child's use of it was for. the parent's business.

The first proposition is sufBciently answered by the de-
cision of this court in the recent case of Cohen v. Meadow,
119 Va. 429, 89 S. E. 876, where it is held that, "An auto-
mobile is not such a dangerous machine or agency as to
make applicable to it the rules requiring extraordinary
care in the use and control of instrumentalities which are
dangerous per seJ*

The second proposition is discussed in Doran v. Thorru-
sen, 76 N. J. L. 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335,
131 Am. St. Rep. 667, as follows: "It bases the creation
of the relation of master and servant upon the purpose



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304 Blair v. Broadwater, 121 Va. 301.

Opinion.

which the parent had in mind in acquiring ownership of
the vehicle and its permissive use by the child. This propo-
sition ignores an essential element in the creation of that
status as to third persons, that such use must be in further-
ance of, and not apart from, the master's service and con-
trol, and fails to distinguish between a mere permission to
use and a use subject to the control of the master and con-
nected with his affairs. The reason for liability Is founded
upon the idea of control which a master has over his serv-
ant. The court, although attempting to rest the liability
upon the relation of master and servant, yet actually tested
the liability by the fact that she was intrusted with the
operation of the machine for her own pleasure, if purchased
for that object, whereby she ipso facto became a servant.
So that the charge thus in fact left the legal relationship
of master and servant out of account, and raised it in name
only because the daughter was allowed to drive the ma-
chine. In this there was also error."

So, also, in Van BlaHcom v. Dodgson, 220 N. Y. Ill, 115
N. E. 443, it is said : "It has always been supposed that a
person who was permitted to use a car for his own accom-
modation was not acting as agent for the accommodation
of the owner of the car. ReiUy v. Connable, 214 N. Y. 586,
108 N. E. 853, L. R. A. 1916 A. 954, Ann. Cas. 1916 A, 656.
The attempt is made, however, to reconcile these apparent-
ly contradictory features of this proposition by the asser-
tion that the father had made it his business to furnish en-
tertainment for the members of his family, and that, there-
fore, when he permitted one of them to use the car, even



Online LibraryVirginia. Supreme Court of AppealsCases decided in the Supreme Court of Appeals of Virginia → online text (page 26 of 89)