(after stating the facts as above). In support of their contention that the verdict was contrary to the evidence plaintiffs in error say the only issue at the trial, "so far as liability was concerned," was the one submitted to the jury, and then add: *Page 959
"There was no evidence introduced in this case except the plaintiff's testimony and the defendant's, Dr. Priester's, testimony; she declaring under oath that she gave the defendant positive instructions not to sever the sphincter muscle; and he declaring under oath that she gave him no such instructions."
It is obvious from the statement quoted (which is warranted by the record) that the verdict was not without evidence to sup port it, but, on the contrary, was supported by the testimony of defendant in error as a witness. According to the statement the evidence was conflicting and warranted a finding either that Mrs. Luzon did or that she did not instruct defendant in error not to sever the muscle. It is settled that in such a case the finding of the jury will not be disturbed by an appellate court. Hughes v. Mayfield (Tex.Civ.App.) 291 S.W. 571; Moore v. Motor Co. (Tex.Civ.App.) 289 S.W. 696; Railway Co. v. Rooks (Tex.Com.App.) 292 S.W. 536; Onset v. Crayon (Tex.Civ.App.) 282 S.W. 666.
In support of their contention that the jury was guilty of misconduct entitling them to a new trial plaintiffs in error charge that in considering their verdict the jury "discussed (quoting) the fact that Mrs. Luzzi's husband or some member of her family who ought to be cognizant of the facts did not take the stand and corroborate her." Whether engaging in such a discussion would have been "misconduct" on the part of the jury or not need not be determined, for it was not shown in the way the statute (article 2234, R.S. 1925) required it to be, or in any other way, that the jury engaged in such a discussion.
In support of their contention that they were entitled to a new trial because of "newly discovered testimony," plaintiffs in error assert that both defendant in error and the witness Dr. Denman testified that in the operation in question only one of the sphincter muscles was cut; whereas they assert, they have discovered since the trial was had that both said muscles were cut, and on another trial can prove the fact, they say, by the testimony of one Dr. Gantt, whose affidavit to that effect they attached to their motion for a new trial. The testimony of Dr. Gantt is newly discovered, plaintiffs in error say, in that it shows the testimony of witnesses who testified that only one of the sphincter ani was severed in the operation in question to have been untrue. Of course, it does not show that, but only contradicts the testimony of such witnesses. It is held that testimony which is only contradictory of evidence heard at a trial is not "newly discovered" within the rule invoked by plaintiffs in error. Moreover, to come within the rule the newly discovered testimony must appear to be "so material that it would probably produce a different verdict on another trial." Railway Co. v. Turner (Tex.Civ.App.) 225 8. W. 383. The controverted issue in the case, as it was tried, was not as to whether the injury to Mrs. Luzzi was caused by the severance of one or both the sphincter ani, but was as to whether she instructed defendant in error not to sever the muscles or either of them or not. It is plain, we think, that the "newly discovered testimony" was not material to that issue and properly could not have influenced the Jury in determining it.
Other contentions presented in the brief of plaintiffs in error when considered with reference to the record are not believed to be more meritorious than those discussed, and are overruled.
The judgment is affirmed.