Hornick v. Bethlehem Mines Corp. , 310 Pa. 225 ( 1932 )

I concur with the majority in its opinion for the following reasons: When the case was first tried the landowner contended the springs were permanently dry as a result of defendant's mining, while the mining company claimed the great drought made them dry and when it rained the springs would return. Since the trial, heavy rains have set in, the springs have come back and are now flowing, and this is the item of proof now sought to be introduced by the petition. There can be little doubt but that the absence of water on the farm played a large part in the verdict though there were other elements of damage. The application to open the judgment and petition for a new trial were refused by the court below in an opinion by Judge McCANN.

A petition to open judgment for this purpose is an appeal to the equitable powers of the court below. The decision is peculiarly within the discretion of that court, and this court will not interfere with its decision unless the discretion lodged in the judge is abused: Augustine v. Wolf, 215 Pa. 558. An abuse of discretion appears where there is a clear and manifest disregard of the facts or law. The judges who hear applications of this sort must assume the absolute and full responsibility for the conclusion reached. It has long been held that in certain spheres of judicial activity a court of first instance has full and complete authority to act, subject only to correction for an unwarranted abuse of power. This appeal presents that situation.

Did the court below, through the opinion of Judge McCANN, abuse its discretion in refusing a new trial? To hold that the court below abused its powers in a case where the probable effect of the new evidence upon the vital issue in the prior trial is disputed takes away from the trial court all responsibility for its acts. Such responsibility is thereby transferred to the appellate court, in derogation of the basic theory of the relation of appellate to trial courts in matters within the latter's discretion.

As a hearing judge with no other matter before me, I would be strongly inclined to hold that the mining company should be permitted to show that the spring was running again in full force, but to do it as an appellate court judge, with disputed evidence and in view of statements as shown in Judge McCANN'S and the majority opinion of this court on which the application for a new trial must rest, would simply be to set aside rules of law well and reasonably grounded in our judicial system. Moreover, the reappearance of the flow of water is subject to another consideration: when the effect of normal rains disappears, it may again cease, a condition that never arose before defendant's mining operations. Such a course of procedure leads to confusion and difficulty and condemns many prior decisions based on these principles. Fixed legal rules should not be set aside in hard cases.

Another serious difficulty is encountered. While every person is entitled of right to one trial in which he has his day in court, a second trial is not a matter of right but of grace and will be granted during term time only when the first trial is shown to have been improper through fraud or any circumstance connected with the trial which appeals to the trial court: Gazzam v. Reading, 202 Pa. 231, 237. When a new trial is granted in term time the discretion thus exercised will not be questioned.

Here the term was passed and the judgment affirmed by this court. To secure another trial after the term has ended, the path of the moving party is beset with grave and serious difficulties. The petitioner must allege fraud in connection with the first trial which prevented a fair submission of the controversy to the jury. No such allegation is made here, but it is suggested that in addition to fraud as ground for a new trial after term time, mistake in trial would be sufficient to justify a reversal, and that the present existence of the springs shows that the verdict was based on a mistake of fact.

As the reappearance of the springs was plainly a fact that came into being since the trial, it was after-discovered evidence, but the substantive facts underlying the evidence were before the court. This item supplemented defendant's proof in that physical facts would now show what inference alone then showed. Courts will go some distance to correct manifest wrong in trials, but, as the majority opinion sets out and as Judge McCANN notes, the facts of the springs' existence and the reason they did not flow were all matters contested before the court in the first trial. While the demurrer to the petition may admit facts as well pleaded, such demurrer does not remove or change the facts in the record of the trial. They are the primary and fundamental basis of the action.

The ruling contended for is novel: that after a trial is ended, and term passed, the losing party may years after come in and say a mistake, without regard to its importance, was made in the trial and obtain a new trial. Few trials are had without mistakes, many are more grave and serious than this so-called mistake. The supposed mistake is no more grievous than in many cases where in the interest of the public trials must end and a new trial cannot be had. The unfortunate consequences of an adoption of appellant's position are well stated by FITZGERALD, J., in Fogel v. I. R. T. Co.,103 N.Y. S. 977, when he says: "The granting of the motion under the exceptional circumstances may tend to imperil the security of judgments, may lead to interminable delay in arriving at definite determinations in actions, may be productive of multitudinous and exasperating applications for new trials in cases, particularly where verdicts rest in any degree upon expert evidence as to future resultant conditions reasonably to be apprehended, — thus swelling the volume of litigation and largely increasing the labors of the courts."

The situation is somewhat analogous to personal injury cases, where it is testified that a person has been permanently injured and after the trial and verdict and money paid, the permanent condition is reduced to partial disability. While some courts have allowed a new trial, it has usually been where the recovery of the plaintiff is so rapid as to suggest fraud (45 L.R.A., N. S. 87), and no judgment in this State to my knowledge has ever been opened for another trial under such circumstances after term time. However, the rule first stated applies, namely, the court below, through Judge McCANN, having passed on this question, its decision is controlling under the circumstances appearing here.