Adams v. Worley

• Court: Georgia Court of Appeals
• Writing for the Court: SUTTON; FELTON
• Citation: Adams v. Worley, 87 Ga.App. 892, 75 S.E.2d 682 (Ga. App. 1953)
• Decision Date: 14 March 1953
• Docket Number: No. 1,No. 34378,34378,1
• Parties: ADAMS v. WORLEY

Page 682

75 S.E.2d 682

87 Ga.App. 892

ADAMS v. WORLEY.

No. 34378.

Court of Appeals of Georgia, Division No. 1.

March 14, 1953.

Rehearing Denied March 31, 1953.

SYLLABUS BY THE COURT.

1. The evidence, though conflicting, supports the verdict, and the trial judge did not abuse his discretion in overruling the general grounds of the motion for new trial.

2. Where the plaintiff pleaded in her petition and testified on the trial that her knee was injured in an automobile accident, alleged to have been the direct and proximate result of certain acts of negligence of the defendant, the trial judge did not err in allowing her physician to testify as to what his examination made some months after the accident disclosed with reference to the plaintiff's knee and the condition in which he found her knee upon an operation made by him.

3. Where the extent and cause of an injury to the plaintiff's knee was an issue on the trial and the evidence in regard to this was conflicting, newly discovered evidence which is merely cumulative or impeaching in its nature does not require a reversal of the judgment of the trial judge overruling a ground of a motion for new trial based on such newly discovered evidence.

Mrs. Mary M. Worley and Joseph A. Adams in the Superior Court of Fulton County, seeking to recover damages for injuries alleged to have been sustained in a collision between the automobile in which she was riding as a guest and an automobile operated by the defendant. In her petition as amended she alleged that the defendant was negligent in violating certain ordinances of the City of Atlanta, and was operating his automobile in a reckless manner without regard to the rights and safety of the plaintiff as he approached the vehicle in which she was riding, whereby, when he attempted to pass on the right hand side, he suddenly turned his vehicle to his left and crashed into the vehicle in which the plaintiff was riding and knocked it into an approaching truck and seriously injured her. The petition charged other acts of negligence against the defendant. In his answer, the defendant denied that he was negligent and set out that, if the plaintiff was injured as alleged in her petition, her injuries were the direct and proximate result of the negligence of the driver of the automobile in which she was riding, who was at the time and place alleged her agent and servant and acting within the scope of his authority.

The jury returned a verdict in favor of the plaintiff, and the defendant's amended motion for new trial was overruled, and he excepted.

Grant, Wiggins, Grizzard & Smith, Atlanta, for plaintiff in error.

Maurice Hilliard and Nick Long, Jr., Atlanta, for defendant in error.

SUTTON, Chief Judge.

1. 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.

2. 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 knee; 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 as 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 engligence 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.

3. 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 u6 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 fooder 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 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 some u6 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...