Wormall v. Reins

Knowles, J.

This is an action for damages for the malpractice of the appellant Reins while acting as a surgeon.

The only errors complained of in the argument of appellants is the allowing of an amendment to the complaint after the close of the testimony on the trial of the cause. and the refusal of the court to continue the cause on the application of the defendants after allowing such amendment. ,

The complaint averred that the elbow'and arm of the plaintiff, Minnie Wormall, was dislocated, put out of joint, disrupted, broken, fractured, wounded and bruised. The answer of the defendant did not traverse this allegation. The contest in the case seems to have been from the statement of the evidence in the record upon the point as to whether the elbow was put out of joint and dislocated, and what is termed the coronoid process of the ulna at the elbow was broken. The plaintiff introduced evidence to the effect that the elbow was only put out of joint and dislocated, and that the coronoid process was not broken. The defendant offered evidence to the effect that the elbow was not only dislocated, but this coronoid process was broken. It seemed to be conceded by all the experts in the case, that if the coronoid process at the elbow had been broken, that the hurt suffered by plaintiff was a much more serious one than a simple dislocation of the elbow joint, and one much more difficult to be treated. The defendant’s attorneys asked the court to instruct the jury that the plaintiff had admitted in the pleadings that the arm was both fractured and dislocated, and the jury must take this allegation as true, and in considering whether the defendant is liable, take this fact into consideration. The plaintiffs thereupon offered to amend their complaint to correspond with the proofs in the case, and show that the arm of the defendant was only dislocated at the elbow. This the court permitted them to do. The court may, in furtherance of justice and upon such terms as are just, allow the amendment of any pleading at any stage of a proceeding. This power is a discretionary one, and thiscourt cannot review the exercise of the same. Unless there has been some abuse of that discretion, courts have frequently permitted pleadings to be amended even after verdict and judgment to correspond with the proofs in the case, and I can see no reason for refusing to allow the amendment of a pleading to correspond with the proofs before the cause is submitted to a jury.

In the second place the power to grant or the refusal to grant a continuance, also rests in the legal discretion of the court’to whom such application is made, and the refusal to grant the same, or the granting thereof, cannot be reviewed by this court unless there appears to have been an abuse of this discretion.

Where the evidence, on a trial, introduced by the plaintiff goes to the point that only a dislocation of the elbow joint was the injury suffered by the plaintiff, and that the coronoid process of the ulna was not fractured, and the testimony introduced by the defendant goes to the point that the elbow joint was not only dislocated, but that the coronoid process of the ulna was fractured and the court permitted the plaintiff to amend his pleadings so as to present this issue, we cannot see that such action would be any ground for a continuance. It may be proper to remark, also, that the amendment of the plaintiffs was not of such a serious character as the plaintiffs seem to think it was. It is true that the complaint did allege that the arm and elbow were both dislocated and fractured. This was not, however, an admission that the elbow was dislocated and that the coronoid process of the ulna was fractured, a peculiar and unusual fracture. There may be other fractures of the arm and elbow besides that of the coronoid process of the ulna, and fractures which would not very materially have affected the treatment of a dislocated elbow. It cannot then be considered that this admission was one of any great importance in this case because it is not an admission of a fracture that rendered the treatment of the dislocated elbow difficult.

Section 79, page 42, of our practice act provides that “the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or de feet.”

As the admission in the record cannot be considered as an admission of the fracture of the coronoid process of the ulna, the most material issue in the case, and the only one claimed by the defendant to have existed, I think that admission was not one that affected the substantial rights of the parties.

The allowing of an amendment in the pleadings so as to preclude this admission, was not one that presented any new material issue in the case, and hence there could have been no abuse of discretion in refusing a continuance for that cause.

Judgment of the court below is affirmed, with costs.

Judgment affirmed.