Southern Bell Tel., Etc., Co. v. Jordan

• Decision Date: 23 March 1891
• Citation: 13 S.E. 202,87 Ga. 69
• Parties: Southern Bell Tel., Etc., Co. v. Jordan.
• Court: Georgia Supreme Court

13 S.E. 202

87 Ga. 69

Southern Bell Tel., Etc., Co. v. Jordan.

Supreme Court of Georgia

March 23, 1891

Error from city court of Atlanta; Van Eppes, Judge.

Simmons J.

1. The first ground insisted on in the motion for a new trial in this case for a reversal of the court below is that the court erred in refusing to continue the case after the plaintiff filed the amendment set out in the record. The record shows that a copy of the amendment was served on the defendant's counsel in December, 1889, but the original was not filed in office until October 27, 1890, and that the trial was had on October 30, 1890. Defendant's counsel stated in his place that "he was surprised by such amendment; that he was less prepared for trial thereby, by reason of the fact that he had made no preparation, by expert evidence or in other respects, to meet said amendment; and that such surprise was not claimed for the purpose of delay only." Counsel did not state that he had not been served with a copy of the amendment, or that he had forgotten it, or that he thought the plaintiff had abandoned it because he had not filed it in court; nor did he state what he could prove or expected to prove, if the continuance were granted. We are inclined to think that when he received the notice of the amendment that was sufficient to put him upon some inquiry for evidence to meet it. Under the Code, the plaintiff had the right to offer the amendment at any stage of the trial and was not compelled to offer it until the trial, and the defendant's counsel, knowing this, should have made preparation to meet it. We presume the notice was given by the plaintiff for the very purpose of preventing a surprise to the defendant and a continuance of the case by him. Moreover, the Code, § 3521, declares, in substance, that when an amendment is made, and a surprise claimed on that account it is still in the discretion of the court whether he will grant the continuance or not; and this court will not attempt to control the discretion given by law to the trial judge, unless that discretion is abused. After a careful study of the facts in this case, we do not think the trial judge abused his discretion.

2. The second ground complains that the court erred in allowing the physician to testify that "the pain suffered by the plaintiff would perhaps be from some injury to the muscles at the time the injury was inflicted." The error assigned is that there was no allegation in the declaration under which it would be admissible, there being nothing alleged as to any injury to the muscles. There was no error in allowing this testimony. The declaration alleges "that the pole fell with great force, striking the plaintiff on the left shoulder and the collar-bone, breaking the bones thereof, and felling him to the rock pavement." We think this allegation is sufficient to authorize proof of pain in the muscles, without alleging specifically that the muscles were lacerated and injured. We cannot see how the collar-bone could have been broken by the falling of the pole upon it, without injuring the muscles of the shoulder.

3. The third ground complains that the court allowed plaintiff's counsel, in interrogating the physician as to the condition of the plaintiff, to put hypothetical questions. There was no error in this, under the facts of the case. The proper mode of examining a physician or expert, where he is not testifying from his own knowledge, is to ask him hypothetical...