Atl. & B. R. Co v. Douglas

• Citation: 46 S.E. 867,119 Ga. 658
• Parties: ATLANTIC & B. R. CO. v. DOUGLAS.
• Decision Date: 04 March 1904
• Court: Supreme Court of Georgia

46 S.E. 867

119 Ga. 658

ATLANTIC & B. R. CO.

v.DOUGLAS.

Supreme Court of Georgia.

March 4, 1904.

CONTINUANCE—SURPRISE—ACTION FOR PERSONAL, INJURIES—EVIDENCE—GOOD HEALTH.

1. In applications for continuance on the ground of surprise resulting from an amendment to pleadings, the party claiming surprise must make oath, or his counsel state in his place, "that such surprise is not claimed for the purpose of delay."

2. "Good health" is a relative term, and does not mean absolute freedom from physical infirmity, but only such a condition of body and mind as that one may discharge the ordinary duties of life without serious strain upon the vital powers.

3. It follows from the foregoing that when, in a suit by a female against a railroad company for damages for personal injuries, it is alleged that the plaintiff was, prior to the injuries, "in good health, " a recovery may be had notwithstanding it appears from the evidence that at the time of the injuries the plaintiff was laboring under an infirmity of which she was ignorant, and which did not interfere with the discharge by her of the ordinary duties of life, and that the result of the negligence of the railroad company was, not to produce an infirmity, but simply to aggravate the existing infirmity.

4. There was no error in any of the rulings complained of which required the granting of a new trial. The verdict, though large, was authorized by the evidence, and the discretion of the trial judge in refusing a new trial will not be interfered with.

Syllabus by the Court.)

Error from City Court of Douglas; C. T. Roan, Judge pro hac vice.

Action by Janie Douglas against the Atlantic & Birmingham Railroad Company. Judgment for plaintiff, and both parties bring error. Judgment on the main bill of exceptions affirmed. Cross-bill dismissed.

J. L. Sweat and W. W. McDonald, for Atlantic & B. R., Co.

L. A. Wilson and Toomer & Reynolds, for Janie Douglas.

COBB, J. Mrs. Douglas, a married woman, sued the railroad company for $10,000 damages, and recovered a verdict for $5,-500. The railroad company assigns error upon the refusal of the judge to grant it a new trial.

1. Pending the trial the plaintiff amended her petition. Counsel for the defendant, claiming that the amendment was material, stated that he was surprised by the same, and moved to continue the case. The court refused this motion, and this is one of the errors assigned. Even if the motion for a continuance was sufficient in all other respects, it was lacking in one essential particular. Counsel did not state in his place or have any one representing the company to make oath, that the surprise was not claimed for the purpose of delay. The Code distinctly provides that, in all applications for continuance upon the ground of surprise resulting from ah amendment to the pleadings, the opposite party shall make oath, or his counsel shall state in his place, "that such surprise is not claimed for the purpose of delay." Civ. Code 1895, | 5128. Counsel for the plaintiff in error contends here that, under the facts disclosed by the record, it was necessarily to be inferred that the application was not made for delay only. The Code does not leave this matter to inference; there must be an express statement to the effect that delay is not the purpose of the application; and, in the absence of such express statement, a judgment refusing to continue the case will not be reversed.

2, 3. The judge charged the jury that "a tort to health already impaired is redressed by giving damages both for further impairment and for any obstruction occasioned by the tort to recovery from existing disease. Wrongfully to cause or aggravate or protract illness is an injury to health, but, as I have charged you, this is a matter entirely for you to consider under the evidence and charge of the court." Error is assigned upon this charge, for the reason that there were no allegations in the petition which authorized the charge, or authorized a recovery under the rule embodied in the charge, and because the same was not authorized by the evidence. The latter objection is not well taken, as there was evidence upon which this charge could have been properly based. Whether or not, under the petition, the theory of the case presented by the charge was properly involved in the case, is the question to be determined. To...