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Goode v. Synergy Corporation2/25/2003
rom the present case on this issue because Frayser never testified at trial as his existence was unknown at or before trial. There was no testimony as to the manufacturer of the homemade plate at trial. The trial court was never afforded the opportunity to consider Frayser's testimony and judge the credibility for itself. Therefore, Synergy's reliance upon Diaz on this point is misplaced.
. Additionally, the testimony is not of an impeaching or cumulative nature as it deals with testimony never before offered to a jury. Frayser's affidavit goes to the cause of the fire. It goes to prove that Synergy Corporation through its employee modified the water heater by installing a "homemade" ventura plate which Synergy attributes to causing the deadly fire. Therefore, we find that Frayser's testimony is material and not merely impeachable or cumulative in nature.
c. New Result
. In order to succeed on a motion for new trial based upon newly discovered evidence, "the evidence [must be] such that a new trial would probably produce a new result." January v. Barnes, 621 So. 2d 915, 920 (Miss. 1992). This Court must examine the evidence and ask whether a jury, if allowed to hear the evidence, would probably find that George Frayser fashioned the ventura plate and installed it on the water heater as an employee of Synergy Corporation.
. In presenting their motion for new trial, the Goodes and Hueys did not challenge the weight of the evidence, yet requested the trial court to allow the jury the opportunity to hear all of the evidence, in particular, the sworn testimony of Frayser admitting to the performance of actions which his employer attributes to the cause of the fire. Therefore, we find that if allowed to present their case, a new result would probably emerge as Frayser's testimony links the cause of the fire to Synergy Corporation by virtue of the fact that he admits to being within the course and scope of his employment at the time of his actions.
. In conclusion, we find that the trial judge abused his discretion because the plaintiffs have met their burden as to all the required elements: (1) the evidence was discovered following the trial; (2) due diligence was shown; (3) that Frayser's testimony is material and not cumulative or impeaching; (4) and Frayser's testimony is such that, if presented, a new trial would probably produce a new result. Moore, 752 So. 2d at ( ). Therefore, we reverse the order of the trial court denying the motion for new trial and remand for a new trial so this newly discovered evidence may be presented to the jury.
. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, IRVING, MYERS AND CHANDLER, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J.
GRIFFIS, J., DISSENTING:
. Relief from a judgment for newly discovered evidence, under Rules 59 and 60 of the Mississippi Rules of Civil Procedure, is an extraordinary remedy. I find that the Goodes and Hueys failed to submit sufficient evidence to establish their entitlement to such relief. Therefore, I conclude that the trial court was within its discretion, and I respectfully disagree with the majority's holding.
. In Moore v. Jacobs, the Mississippi Supreme Court established the criteria for a trial court to grant a motion for new trial based on newly discovered evidence. The court held:
A motion for a new trial (based on new evidence) is an extraordinary motion, and the requirement
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