
    E. J. Logan vs. Francis J. Rondina
    No. 84139.
    January 27, 1932.
    For plaintiff: Harold R. Semple.
    For defendant: Fergus J. MeOsker.
   FROST, J.

Heard on defendant’s motion for new trial after verdict for plaintiff in the sum of $198.90.

This is an action brought by plaintiff to recover for medical services rendered to members of defendant’s family. Doctor Logan produced cards showing the dates when calls were made and the amounts charged therefor, as well as certain credits given the defendant. The defense in the main was that Mrs. Rondina in her lifetime had paid the doctor substantially as the calls were made. There was evidence, the Court thinks, from which the jury could fairly find that the defendant was indebted to the plaintiff in the amount of the verdict.

In addition to the usual grounds, defendant claims to be entitled to a new trial on the basis of newly discovered evidence. He has filed an affidavit accompanied by a receipt for the sum of “Twenty-five dollars in full for confinement,” signed by E. J. Logan and dated Aug. 2. The year is not clear. The only confinement listed in the plaintiff’s statement of account is under the year 1914 — “April 25 Confinement $15.00.” The receipt appears to be a genuine receipt but when given and whether for an earlier or later confinement or for the one listed is not clear. It was found, it would seem, within a very short time after the conclusion of the trial.

There have been two trials of this case: one in the District Court and one in the Superior Court. The receipt was in the possession of the defendant. It seems to the Court that if the defendant possessed a reasonable- appreciation of the necessity of having his receipts with him when he came into Court and if he used reasonable diligence in searching for them, he would have had this receipt, as well as the one which was produced in evidence, when he came into Court the second time.

In the Court’s opinion due diligence has not been shown and therefore defendant is not entitled to a new trial on the ground of newly discovered evidence.

Defendant’s motion for a new trial is denied.  