Adams v. Worley

Sutton, C. J.

The evidence, though conflicting, supports the verdict. It follows, therefore, that the trial judge did not err in overruling the general grounds of the motion for new trial.

Special ground 4 of the motion assigns error on the admission of certain testimony on behalf of the plaintiff, from Dr. Martin T. Myers, to the effect that, subsequently to the filing of the suit, he caused X-rays to be made of the plaintiff’s knee and treated her for the symptoms found; that he operated on the plaintiff’s knee and removed the cartilage in October, 1951; that he found the cartilage was torn and the joint surfaces thickened; and that, after the cartilage has been removed, the knee itself is sore and tender and the weakness of the muscles of the leg would naturally weaken the joint. The defendant objected to the testimony on the ground that the doctor did not attribute the injury to the accident, and that there was evidence that the plaintiff had an injury to her knee 16 years prior to the accident. The trial judge overruled the objection and admitted the testimony.

In her petition as amended, the plaintiff alleged “that, as a result of the collision set forth in her petition, your petitioner’s right knee cartilage was torn and as a result of said injury your petitioner was operated on in said areas and the cartilage removed by Dr. Martin E. Myers on or about October 24, 1951, in the St. Joseph’s Hospital,” and that by reason of same she incurred certain medical expenses. The plaintiff testified that in the collision her knee struck something; that it hurt her; and that, after she returned to work, her knee “was hurting me all the time; the last two days I worked I could hardly get to work. My knee was all swelled up and I couldn’t hardly pick it up. It was my right one. That was the one that was hurt in the wreck. They made some X-rays of my knee. . . I had taken treatments awhile from Dr. Myers, and he gave me heat treatments and he wanted to operate on my knee . . and it kept getting worse and worse, so I called him one day and told him, ‘Dr. Myers, I am going to have my knee operated on.’ ” She further testified that he performed the operation on her knee referred to in his testimony in question in this ground of the motion for new trial.

The contention of the plaintiff in error, that the testimony was irrelevant and prejudicial because there was no testimony to connect the injuries found by Dr. Myers on his examination and for which he operated with the accident in which the plaintiff was injured, is without merit. The plaintiff pleaded that her knee was injured in the accident and that Dr. Myers operated on it. Her testimony supported the allegations of her petition and clearly connects the examination and operation by Dr. Myers with the collision allegedly caused by the negligence of the defendant. The evidence was not inadmissible for any reason assigned, and the trial judge did not err in overruling the objection thereto and admitting such evidence.

Special ground 5 is based upon newly discovered evidence alleged to be material to the issues in the case. This ground was based upon affidavits to the effect that, some 16 years prior to the collision in which the plaintiff alleged she was injured, the plaintiff sustained an injury to her right knee, which required hospitalization at that time and from which she continued to suffer. On the trial, the plaintiff testified: “I never had any trouble with my knee before, only one time. I was taking up fodder. I lived on a farm and I was taking up fodder and fell over a terrace and my knee was swollen a little. I went to a doctor and he felt there was pus in my knee and I went to the hospital and he taken a needle and drawed that pus out, and I have never had no more trouble with it since. That was 16 years ago. I never had any trouble with it since he put the needle in my knee, other than since this wreck.” Part of the affidavits in question tended to show that the plaintiff had trouble with her knee some 16 years prior to the trial, and that she went to the hospital with the injury and was on crutches for some six months and until she moved from the community. Other affidavits were to the effect that, about a year prior to the accident, the plaintiff was limping and showed her knee to a neighbor, and that it was swollen and had a large scar on it, and that the plaintiff said at that time she had injured her knee several years ago. This ground of the motion was supported by supporting affidavits and affidavits from defendant’s attorneys to the effect that they did not know of the prior injury to the plaintiff’s knee until she testified on the trial in the court below with reference to it.

The trial judge did not err in overruling special ground 5 of the amended motion for new trial. The effect of the new evidence would be to impeach the testimony of the plaintiff that she had not had any trouble with her knee prior to the collision since the doctor treated her at the time of the first injury to her knee som'e 16 years ago. “There are literally hundreds of decisions which hold that newly discovered evidence which is merely impeaching in its character is not a good ground for a new trial.” Lemming v. State, 61 Ga. App. 605 (7 S. E. 2d, 42). Moreover, “Newly discovered evidence is a discretionary ground for a new trial, and a judgment overruling a motion for a new trial based thereon will not, in the absence of abuse, be disturbed.” Loomis v. State, 78 Ga. App. 336 (13) (51 S. E. 2d, 33). The plaintiff in error insists that the newly discovered evidence, to the effect that in May, 1949, the plaintiff “was hobbling along when she walked,” and that in February, 1950, the plaintiff’s right knee “was swollen and had a large scar about two inches long, . . and she was limping,” is not merely cumulative or impeaching in its character, but that it relates to new and material facts. This contention cannot be sustained. The extent and cause of the plaintiff’s alleged injury to her knee was an issue on the trial, and the evidence in regard to it was conflicting. Both plaintiff and defendant placed in evidence medical testimony from physicians who had treated the plaintiff. Dr. Rufus Askew, a witness for the defendant, testified that he examined the plaintiff about a month after the accident, and that he made a very thorough examination; that she stated that, several hours after the accident, she began to have some pain in both knees; and that she told him that she had been in an accident on June 25, 1951, when a car in which she was riding was sideswiped by a passing automobile and caused to crash into a truck. He further testified: “She did complain of both knees. She said it got to hurting that night after the accident. I did make an examination of both knees and they were normal. . . She could walk with no limp of any kind, [without] any difficulty at all, because she was followed by me from my office to the examination room which is further than the length of this room, and she did not walk with any difficulty whatsoever. . . I say that on July 27, my examination did not show any injury to the cartilage, nothing that would require the removal of the cartilage. . . I would say that in September [if] she was examined and found to have a torn cartilage, it occurred after July 27th, the tearing of the cartilage did. In my opinion it could not have happened prior to the time of my examination.” From the evidence in the record in the case, it appears that the extent and cause of the injury to the plaintiff’s knee was one of the issues on the trial, and that the evidence with reference thereto was conflicting. The alleged newly discovered evidence is merely cumulative or impeaching in its nature and does not require a reversal of the judgment of the trial judge overruling a ground of the motion for a new trial based on such newly discovered evidence. In this connection, see Macon & Birmingham Ry. Co. v. Ross, 133 Ga. 83 (65 S. E. 146). Also see Brand v. City of Lawrenceville, 64 Ga. App. 357, 359 (13 S. E. 2d, 214), and citations; Giles v. Poppell, 61 Ga. App. 79, 81 (5 S. E. 2d, 710).

The verdict is supported by the evidence; no error of law appears; and the trial judge did not err in overruling the amended motion for a new trial.

Judgment affirmed.

Worrill, J.,. concurs. Felton, J., concurs specially.