1. The court did not abuse its discretion in overruling the motion for continuance, based upon the absence of an alleged material witness, where it was not shown that such witness lived in the county or had been subpoenaed, and where it appeared that the witness was serving overseas in the United States Army, and there was no reason to expect that he would be present at the next term of the court. Code, § 81-1410; Barlow v. State, 24 Ga. App. 122 (99 S.E. 798).
2. No error is shown in the disallowance of an amendment to the declaration offered by the plaintiff increasing the damages from $2000, claimed in the attachment to $10,000, where the jury found against the plaintiff as to damages in any amount. See Casey c. Mfg. Co. v. Dalton Ice Co., 94 Ga. 407 (3) (20 S.E. 333).
3. The doctrine res ipsa loquitur is not a rule of law, but is only an inference of fact permitted but not required to be made by the jury. It is but the proof of negligence by circumstantial rather than by direct evidence, and it must be applied by the jury, if at all, and not by the court. The judge properly charged that there must be reasonable evidence of negligence, and that the jury should say whether negligence would be inferred in the absence of explanation by the defendant. Cochrell v. Langley Mfg. Co., 5 Ga. App. 317
(63 S.E. 244); Sinkovitz v. Peters Land Co., 5 Ga. App. 788
(64 S.E. 93); Blanton v. Great A. P. Tea Co., 61 Fed. 2d, 427.
4. The court erred in refusing to allow the plaintiff to introduce additional material evidence, where it did not appear that the plaintiff had definitely closed, but had in effect merely rested, and counsel for the defendant had made a motion for a nonsuit, which was then pending, and other evidence was being introduced by the plaintiff, and the witness offered was in court, and the defendant did not show that it would be prejudiced or injured by the introduction of the additional testimony. See Penn. v. Georgia Southern Florida Ry. Co., 129 Ga. 856 (60 S.E. 172); Wickham v. Torley, 136 Ga. 594 (71 S.E. 881); and Walker v. Central of Georgia Ry. Co., 47 Ga. App. 240 (6) (170 S.E. 258).
5. All other assignments of error relate to rulings on the admission of evidence, and are either without merit or such as may not occur upon another trial.
Judgment reversed. Sutton, P. J., concurs. Felton, J., concurs in the judgment.
DECIDED JUNE 21, 1945. REHEARING DENIED JULY 25, 1945.
This action was begun by attachment sued out by Willie Dollar against Fred W. Amend Co. The defendant gave bond dissolving certain garnishments issued and served in the case. Upon the first trial the plaintiff, in the absence of the defendant, took a verdict
and a judgment against the defendant and the surety on the garnishment dissolution bond, but they were set aside and a new trial ordered. Thomas v. Fred W. Amend Co., 196 Ga. 455
(26 S.E.2d, 415), and cit. Before the second trial the plaintiff died and his administrator was made the party plaintiff in his stead. Upon the second trial the plaintiff moved to continue the case on the ground that the principal eyewitness to the transaction wherein the defendant was alleged to have been injured, and the only eyewitness to the entire transaction, was enrolled in the armed services, and was overseas and his address unknown, though efforts had been made to ascertain his whereabouts. The motion was overruled and the case ordered to trial, to which ruling the plaintiff took pendente-lite exceptions. The plaintiff then sought to amend the declaration in attachment by increasing the damages claimed from $2000 to $10,000, on account of the death of the original plaintiff subsequent to the beginning of the action, alleged to have resulted from the injuries sustained. The proffered amendment was disallowed, and the plaintiff excepted pendente lite to that ruling. The trial proceeded and the plaintiff introduced evidence, including counsel's recollection of the decedent's testimony on the former trial. At about 1 o'clock, p. m., counsel for the plaintiff sought the court's indulgence to allow him to make an effort to obtain another witness, the only living eyewitness to the transaction out of which the cause of action arose other than the absent witness serving in the armed forces. After some discussion and the court's refusal to suspend the proceedings and give counsel time to summon this additional witness, counsel remarked: "I guess that is all, your Honor." The defendant's counsel then stated that he had a motion to make, whereupon the jury were excused until 9:45, a. m., the following morning. The defendant moved for a nonsuit, and argument thereon was had until 1:30, p. m., when a recess was taken until the following morning without any ruling on the motion for nonsuit. Upon the reconvening of the court the next day counsel for the plaintiff sought permission to put up two more witnesses, one to strengthen the case with reference to the alleged negligence of the defendant, and the other (the eyewitness to the transaction) to support the testimony of the deceased given on the former trial. The court reopened the case for the introduction of evidence, and allowed the testimony of the
first witness offered, but disallowed the latter, though his testimony was heard by the court in the absence of the jury. The court refused to permit the second witness to testify because of a statement of the defendant's counsel that he had had a witness in Brunswick, Georgia, subject to call, whose testimony would refute that of the proffered witness, and that he had excused his witness, thinking the plaintiff had closed. It did not appear that the witness had been subpoenaed, that he had been present in court, or that permission to excuse him had been obtained. The testimony of the proffered witness heard by the court but not permitted to be introduced was helpful to the plaintiff's case, and was the only testimony by a wholly disinterested person as to the transaction in which the decedent claimed to have been injured. The court refused to let the witness testify before its ruling on the motion for a nonsuit, and then denied a nonsuit. The defendant introduced no evidence. The jury found for the defendant and the plaintiff moved for a new trial. The amended motion was overruled and exception taken, along with assignments of error on the exceptions pendente lite.