On Motion for Rehearing.
The movant contends that this court has overlooked the fact that the newly discovered evidence, on which a ground of his motion for a new trial is based, was uncontroverted, and also has overlooked the decision in Matthews v. Grace, 199 Ga. 400 (34 S. E. 2d, 454). Regardless of its truth, newly discovered evidence which is merely cumulative or impeaching in its character is not a ground for a new trial. Code, § 70-204. The Matthews case is distinguishable from this case and is not controlling here, because in that case it appeared that the newly discovered evidence relied upon was not cumulative, and there was a sufficient showing of diligence on the part of counsel for the movant.
The movant further contends that the court has overlooked the following definition of cumulative evidence, as stated in Thomas v. State, 52 Ga. 509: “To make a case of cumulative evidence, it must be not only on a point principally controverted at the trial, but a point on which the party seeking the new trial produced evidence.” The movant asserts that “the only evidence adduced on the trial with respect to the prior injury to plaintiff’s knee was testimony of the plaintiff herself given on direct examination,” and that “defendant did not offer any evidence whatsoever with respect to the .prior injury.”
Dr. Rufus Askew was called as a witness for the defendant, *898and he testified that he made an examination of Mrs. Worley at the request of the defendant. In addition to the parts of his testimony set out in the opinion in this case, the following appears in the brief of evidence as the substance of his testimony: “I did make an examination of both knees and they were normal. I did not find any evidence of any stiffness, swelling, discoloration or bluishness. . . You ask me, suppose a woman of the size of Mrs. Worley, 195 pounds, 16 years ago had an injury to her knee the type of which you don’t know but that you know a doctor, so she testified, stuck a needle and removed some fluid or calcium or something from it, that in my opinion could a definite thickening of the ligament on the internal side of her knee have resulted from that injury 16 years before. Well, it could have but it is rare even then. It would certainly be much more likely to occur from something several years ago, and I think it would be totally impossible for it to occur from something a month and two days old, but it is rare for it to occur, from something several years old. . . As a result of my examination of Mrs. Worley’s knee on July 27th, 1951, I am perfectly willing to swear upon my word of honor that she did not have a tear or any possibility of any tear or any sign or symptom of any tear of a cartilage in her knee. . . I am positive that she did not have any sign or symptom, she did not have even the slightest, not even anything to make one even wonder, you wouldn’t even suspect it, you wouldn’t even hesitate one moment in thinking that she had a torn cartilage.”
Following the testimony of Dr. Askew, Mrs. Worley was recalled by the defendant, and, on cross-examination by the defendant, testified in part as follows: “I lived at Monroe, Georgia, before I came to Atlanta. I lived there one year. My name then was Mary Worley. I lived there it was five years in August. Sixteen years ago I was living at Lula, Georgia, on a farm. My name was Mary Worley then. I have been married twice. My name before I married Mr. Worley was Mary Harbin, and my maiden name was Mary Miller. Nineteen years ago I was living at Lula, Georgia, when I hurt my knee. I was living at Crawford, below Athens, when I had an automobile accident some several years ago. . . I did not have a knee injury then nor a leg injury. . . This was in *8991934. . . The only injury to my leg before this was 16 years ago at Lula. Dr. Jolley at Homer operated on me then. He lived over there about Homer somewhere, Homer, Georgia.”
It cannot be said that the defendant did not offer any evidence whatsoever with respect to the plaintiff’s prior injury. It appears that the defendant took the position on the trial that the plaintiff had sustained no injuries to or disability of her knee, and sought to maintain such a position even when faced with the plaintiff’s admission of an injury sixteen years before the trial. If the plaintiff’s knee was normal and not disabled one month after the collision on which the suit was based, as stated by Dr. Askew, then neither the collision nor the previous injury had anything to do with the injury on account of which the plaintiff sought recovery of damages, and in this respect the defendant’s evidence was strongly in conflict with the evidence adduced by the plaintiff. The same is true of the newly discovered evidence relied upon as a ground for a new trial, and hence it is merely cumulative and impeaching in its nature.
Moreover, the evidence above stated has some bearing upon the showing of diligence, on the part of the movant and his counsel, in discovering the new evidence. The only action which appears to have been taken to determine whether the plaintiff had a prior injury was to examine both of the plaintiff’s physicians by deposition; “neither made any statement that would indicate that her knee had been injured prior to the time'of the accident on which the above case is predicated.” It does not appear that any inquiry was made of them concerning a prior injury. And, if the plaintiff had “a large scar about two inches long” on her right knee in 1950, as sworn to in the affidavit made by Mrs. Hassie Williams, such a scar should have been sufficient to put the defendant on notice, through Dr. Askew, who conducted a thorough examination of the plaintiff’s knees on July 27, 1951, that the plaintiff had received a previous injury. It does not appear that any inquiry was made of the plaintiff herself as to her having sustained a prior injury to her knee. When the movant and his counsel, on the trial of the case, learned of the prior injury and of where it occurred, they made no motion for a continuance or a suspension of the trial (See Monday v. State, 32 Ga. 672 (7); Bray v. Freeman, 32 Ga. App. 99, 122 *900S. E. 623), but instead chose to risk a verdict. The court was authorized to find that the movant and his counsel could have discovered the new evidence by the exercise of slight diligence; and that, if the movant was surprised by the plaintiff’s admission of her prior injury, he could not take his chances of winning a verdict and then obtain a new trial on newly discovered evidence under the circumstances as here disclosed.
Accordingly, the motion for a rehearing is denied.