(2) The court erred in giving Instruction A requested by plaintiff. (3) The trial court erred in failing to grant a new trial on the ground of newly discovered evidence, and on the statutory ground, Section 2022, which provides in substance that in every case where a fraud or deceit has been practiced by one of the parties on the other, or the court is satisfied that perjury or mistake has been committed, a new trial should be granted. Standard Inv. Co. v. Hoyt, 164 Mo. 124; Ry. Co. v. Fogelsong, 42 Colo. 341; In Jensen v. Hamburg American Packing Co., 23 A.D. 163, 48 N.Y.S. 630; Southard v. Bangor Railroad, 91 A. 948; State v. Murray, 91 Mo. 103; Rickroad v. Martin, 43 Mo. App. 597; Lessenden v. Ry. Co., 238 Mo. 247; Waddell v. Ry. Co., 111 S.W. 542; McDonald v. Railroad, 164 Mo. App. 56; Morrell v. Lawrence, 203 Mo. 363; Taylor v. Ry. Co., 185 Mo. 239; Lundahl v. Kansas City, 209 S.W. 564; Ossenberg v. Chemical Co., 218 S.W. 421; Young v. Lusk, 268 Mo. 640. Atwood, Wickersham, Hill Popham for respondent.
In a wrongful death action, the rule is that conditions are determined as of the time the cause of action arose, so that the remarriage of the surviving spouse, for example, does not prevent full recovery (Rodak v Fury, 31 A.D.2d 816; Luddy v State of New York, 30 A.D.2d 993, affd 25 N.Y.2d 773; Lees v New York Cons. R.R. Co., 109 Misc. 608, affd 193 App. Div. 882; cf. Ann 30 ALR 121). The power of the court to order a new trial under the circumstances of Miner's death during the appellate process comes down to a consideration of policy. Usually, a new trial because of facts discovered after trial relevant to the recovery of damages is directed only where fraud or deceit was practiced at the trial (Papathanasi v Reiter, 270 App. Div. 308, 310; Swarzina v Knight Timoney, Inc., 265 App. Div. 33, 35-36; Jensen v Hamburg-American Packet Co., 23 App. Div. 163, 168-169; cf. Fogel v Interborough Rapid Tr. Co., 185 N.Y. 562; Ann 55 ALR3d 696). That is, of course, not the posture here. Miner's unfortunate physical condition was fully disclosed at the trial. The medical testimony indicated that his life expectancy was a highly uncertain component to be evaluated by the jury.
The jury returned a verdict in favor of the plaintiff in this case in the sum of $6,500. Furtherance of substantial justice, therefore, requires that a new trial be granted so that a jury with the new evidence of defendant's witnesses before it may determine whether or not plaintiff's injuries were as serious as he claimed them to be. ( Cole v. Fall Brook Coal Co., 16 N.Y. Supp. 789; Corley v. New York Harlem R.R. Co., 12 App. Div. 409; Jensen v. Hamburg-American Packet Co., 23 id. 163; Amalfi v. Post McCord, Inc., 250 id. 408; Barrett v. Third Avenue R.R. Co., 45 N.Y. 628, 632; Fogel v. Interborough R.T. Co., 53 Misc. 32; 103 App. Div. 609; 185 N.Y. 562; Brooks v. Rochester R. Co., 10 Misc. 88.) There should be taken into consideration, in determining whether substantial justice requires a new trial of this action, the fact that one of defendant's witnesses, although without fault on the part of the plaintiff, disclosed to the jury in his testimony that the defendant was insured.
Such newly-discovered evidence of plaintiff's physical condition, if believed, will undoubtedly have a decided bearing upon the outcome at another trial and in and of itself is sufficient to warrant the setting aside of this verdict. ( Jensen v. Hamburg-American Packet Co., 23 App. Div. 163, 169.) The law as to what must be shown to entitle a party to a new trial on the ground of newly-discovered evidence has been succinctly stated by this court in the case of Frohlich v. Zeltzer ( 185 App. Div. 103, at p. 109), as follows: "It must appear that the evidence was not and could not have been discovered in the exercise of reasonable diligence before the trial, that it is material and not merely cumulative or of an impeaching character in the sense of affecting credibility only as distinguished from having probative force by showing a different state of facts and that on a new trial it would probably change the result.
After-developments, refuting an opinion as to future probable results (required to be testified to only with reasonable certainty), cannot be classified as newly-discovered evidence which may be defined as the existence of material facts unknown to the moving party at the time of the trial, and which reasonable diligence could not have discovered. The well-settled rules governing the disposition of applications for new trials upon the ground of newly-discovered evidence, as set forth in many adjudications, have no application here. Jensen v. Hamburg-Am. Packet Co., 23 A.D. 163, was a case where subsequent observation tended to prove that plaintiff deliberately and knowingly magnified his injuries. The same is true of Cole v. Fall Brook Coal Co., 40 N.Y. St. Repr. 834. Of a like character are Wood v. Town of Smithfield, 102 N.Y. 288; Nugent v. Metropolitan St. R. Co., 46 A.D. 105; Corley v. N.Y. H.R.R. Co., 12 id. 409.