¶1 On Petition for Rehearing.
¶2 In her petition for rehearing appellant says the language used by this court in the beginning of the last paragraph of the opinion, to wit:
“The court did not abuse its discretion in granting a new trial to permit the presentation' of evidence, tending to show the witness admitted she gave false testimony, etc.” is misleading in this that it implies the trial court granted the new trial on the ground of newly discovered evidence and on the ground of accident or surprise, whereas the trial court said in the memorandum opinion:
“There was a square conflict of testimony and if the jury believed Mrs. Nellie Harney and the plaintiff’s testimony then there was sufficient to justify the verdict. Defendant attempted at the trial to discredit her testimony, but apparently in vain and the verdict shows the jury believed the plaintiff’s testimony and that being sufficient if believed the verdict cannot be set aside for that reason. Much effort is made upon this application to show further evidence to discredit the testimony of Mrs. Nellie Harney but all that is merely cumulative and corroborative of evidence already in the case and some like the conversation with Mrs. Harney since the trial, is newly created. Such cumulative or newly created testimony can hardly be used as the basis for a new trial or there never would be an end to litigation. Especially so in cases where that cumulative testimony does not indicate that there would be any different result upon the new trial.”
*285 “One of the contentions of the defendant is that he was surprised by the testimony of Mrs. Nellie Harney. Such surprise, however, cannot be made a base of a new trial. He knew that an attempt would be made to establish the payments set out in the complaint and it was up to him to be ready to meet it. A party must necessarily always take some chance on trial and even if some testimony is produced which a party was not expecting that is an exigency of the trial which he must endure. If a new trial were always granted on such a claimed surprise there would be no end to litigation.”
¶3 The granting of a new trial did permit the presentation of this evidence said by the respondent to be newly discovered, etc. However, the trial court, in its memorandum opinion, says further:
“This new evidence may be such as to change the result of the trial. The court believes that a sufficient showing is made upon this newly discovered evidence by the defendant to allow it to exercise its discretion with regard to whether to grant a new trial or not. In the interests of justice the court exercises that discretion in the favor of a new trial, etc.”
¶4 This is the statement of the trial court and is indicative of the court’s attitude toward the showing made. This reference to the memorandum opinion shows why the trial court granted the new trial in the interests of justice to permit this evidence to be presented. The petition for rehearing is denied.