#### Geter *v.*Central Coal Company.

*Action for Damages for Personal Injury.*

(Decided Jan. 16, 1907.

43 So. Rep. 367.)

1. *Appeal; Assignment of Error; Record; Review.*— Where the appeal is taken from the overruling of a motion for a new trial assignments of error predicated on exceptions reserved on the trial, not made ground of motion for new trial, cannot be considered on appeal.

2. *Same; Instructions; Objections ¡Exceptions; Necessity for.*— Objection to the oral charge must he made and exceptions reserved thereto at the time of its delivery in order to make such *579objections the basis for a new trial and have the same considered on appeal from the overruling' of such motion.

3. ' *Same; Improper Remarks of Court.*— An objection to an improper remark made by the court during the trial must be reserved by an exception thereto at the time of its making and the same made a ground for motion for a new trial, before it can be considered on an appeal from a judgment refusing a- motion for a new trial.

4. *Neio Trial; Grounds; Surprise.-*— One cannot claim surprise as a ground for a new trial, based on the testimony of the officer of the corporation that such person made certain admissions, where such person denied making any admission while testifying in his own'behalf on redirect examination; the remedy of a party taken by surprise at the testimony of witness of the adverse party, is by motion for á continuance.

5. *Same; Reioly Discovered Testimony; Cumulative*Testimony.— A new trial will not be granted on the ground of newly discovered testimony which is merely cumulative.

Appeal from Jefferson Circuit Court.

Heard before Hon. A. A. Coleman.

Action by Kitt Geter against tbe Central Coal Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Many assignments of error are predicated upon tbe action of tbe court upon the trial of the cause, but are not considered in the opinion, for the reason clearly Stated therein. Plaintiff filed an application for a neAV trial, assigning the following grounds: “(1) Because the plaintiff was taken by suiprise on the trial in this: That' the defendant, through one of its officers, claimed that on a certain day,' when in company w,ith another one of defendant’s officers, he Avas on a visit to this plaintiff, plaintiff admitted to him that he Avas at fault, and that he himself contributed to his alleged injury, when in fact no such admissions were made. (2) Same grounds as No. 1. (3) On the grounds of newly discovered evidence, in that lie had discovered since the trial the names of two or more parties AAdio were present during the whole of the conversation betAveen plaintiff and defendant’s officers, Boden and Pearson, at their said visit, and who will and do testify that- Geter made no use of the language they claimed he used, and that he used no words that could be construed to mean that he was in any manner to blame for his injuries. (4) Be*580cause *the*charge given by the trial judge was partial, and calculated to bias the minds of the. jury in 'favor of the defendant. (5) Because the- oral and emphatic charge of the judge was unintentionally prejudicial to plaintiff’s interest, and was calculated to- bias the jury. (6) Because the trial judge constantly and repeatedly reiterated the same parts of his charge, saying.the same thing over and over when in favor of :the defendant, and unnecessarily emphasizing the statement that the jury should find for the' defendant, and partly in support of this ground plaintiff refers to the charge as taken down by the court’s, official stenographer, Mr. Evans.”. The seventh, eighth, ninth, tenth, eleventh, and twelfth grounds were an enlargement and elaboration of ground 6, all referreing to the unintentional action of the judge, creating a bias in the minds of .the jury favorable to the defendant. The facts - aie sufficiently stated in .the opinion, and as to each ground of the motion the .evidence- was in controversy.

Francis B. Nabers, and Arthur. L. Brown, for appellant. —

The conduct of the trial court complained of in the motion for a new trial is sufficient to- base a reversal *upon.*— Wheeler *v. Wallace,*53 Mich. 355; *State v. Allen,*100 la. .7; 21 Eney. P. & P. .994; *Fac/er v. The State,*22 Neb. 332; *State v. Ooella,*3.Wash. 99; *Griff im, v. The State,*90 Ala. 601; *Perhins v.. The State,*50 Ala. 154. Counsel discuss other assignments of error but cite no authority.

Walker Percy, for appellee. —

The court properly overruled the motion for a *new-trial.*— McLeod *v. Shelby Co.,*108 Ala. 81; 4 Mayf. Dig. 315.. Counsel discuss other assignments of error but cite no authority.

TYSON, C. J. —

This case was tried on the 30th day of September, 1902. On the 30th day of October following a motion for a new trial was entered. This motion was disposed of on the 30th day of June, 1905, by judgment overruling it. The bill of exceptions in the record was signed on the 18th day of October of 'the same year, but within the time allowed for its signing by an order *581of the court made when the motion ivas denied and other orders of the piesiding judge made in vacation.

Many assignments of error are predicated upon exceptions reserved upon the trial not made grounds for the motion for new trial. It is clear that these cannot be considered. It is only the assignment of erior based upon the ruling upon the motion that is presented for review, for the reason that the bill of exceptions can only be regarded as preserving the exception taken to that ruling.- — -5 Mayfield’s Big. p. 720, § 15.

The motion contained a number of grounds. The main cause of complaint seems to -be aimed at the conduct of the presiding judge, which, it is asserted, was prejudicial to plaintiff’s cause in the minds of the jury that tried it. His conduct, upon ivhich is relied as sustaining the assertion, was in giving .undue emphasis to certain words in his oral charge to- the jury, cautioning them not to permit their sympathies to influence their verdict, etc., and in acts of familiarity ivith one Pearson who- was a stockholder in and an officer of defendant-corporation, and a witness.for it on the trial of the case.

It does not appear that plaintiff reserved an exception to the charge of the court, and unless this was done he must be regarded as: haying waived all objections he may have had to it. He will not be allowed, to speculate upon its effect upon the jury. He could not await their verdict, and, in the event it is adverse to him, complain that he was prejudiced by the charge, when he made no objection to it. The attempt to cure the omission of reserving an exception, if the .charge was es- . teemed to be erroneous and prejudicial, by a motion for a new trial, must be regarded as wholly ineffectual. Such is not the office of a motion. In .other words, a motion for a new trial cannot take the place of an exception, which could and should' be properly reserved during the *trial.*— McLendon *v. Bush,*127 Ala. 470, 29 South. 56, and authorities there cited; *Stewart v. Guy,*138 Ala. 176, 34 South. 1007. This principle is also applicable and-controlling with respect to. the remark of the court to plaintiff’s counsel as to his (plaintiff’s) being able “to- get his own chair” when called to the witness stand to testify in his own behalf.

*582With respect to the conduct of the presiding judge towards Pearson we are not reasonably satisfied, from the evidence introduced pro'and con, that this ground of the motion was proved. Undoubtedly tire burden of proving the fact was upon the movant. Its occurrence was denied by Pearson and counsel for defendant, and the presiding judge found against the movant on the issue. In view of the burden of proof and the presumption of correctness which must be accorded the finding of the trial judge on this disputed issue of fact, we feel constrained to hold that we cannot affirm that this ground of the motion was well taken.

The other grounds of the motion are predicated upon surprise during the trial and newly discovered evidence. Both of these grounds are attempted to be supported by affidavits exhibited for the purpose of showing that the testimony of Pearson, who was examined as a witness by defendant, that plaintiff made certain admissions to him before the action was brought, was untrue. It appears from the bill of exceptions that plaintiff, while testifying in his own behalf on redirect examination, denied making any such admissions or statements, and that subsequently in the course of the trial the defense offered the testimony of Pearson to show that he made them. It is apparent, therefore, that there was no' surpise. His own- testimony shows that he anticipated that the evidence introduced by defendant would be offered; otherwisé, he would hardly have denied making the statement in advance of its introduction by defendant. But, aside from this, had lie not shown that he anticipated such testimony, and if surprised by it, he should have moved a continuance of the cause or a postponement of the trial. “The correct prac" tice in such case is for the party at once, upon the discovery of the cause during the progress bf the trial which operates as a. surprise on him, to move a continuance or postponement of the trial, and not attempt to avail himself of the chance of obtaining a verdict on the evidence he has been able to introduce, and, if he should fail, then apply for a new trial on the ground of surprise. To tolerate such a practice would have the effect óf giving to the.'party surprised an unreasonablé *583and unfair advantage, and tend to an unnecessary and improper consumption, of the time of the *court.”*— Hos*kins v. Hight,*95 Ala. 284, 11 South. 253.

Suffice it to say as to the merits of the motion predicated upon newly discovered evidence, that the new evidence offered in support of the ground of the motion was merely cumulative of the plaintiff’s denial that he made the statement or admission. Under all the authorities, “it is a well-settled rule that a new trial will not be granted on the ground of newly discovered evidence, wrhen the new evidence relied on is merely cumulative to that introduced a.t the former trial.” — 14 Ency. of Pl. & Pr. p. 811, and note 2.

Other reasons might be stated justifying the overruling of the motion on the two grounds last discussed, but those given are sufficient to affirm the ruling of the court in tliis case.

Affirmed.

Dowdell, Anderson, and McClellan, JJ., concur.