Opinion
No. 3331.
March 19, 1936.
Appeal from District Court, Karnes County; S. B. Carr, Judge.
Action by Geral Williams against J. O. Creighton and others. From an adverse judgment, the plaintiff appeals.
Affirmed in part, and reversed and remanded in part.
This is a personal injury suit by Geral Williams against D. S. Abernathy, Mrs. J. O. Creighton and husband. Abernathy was driving an automobile south upon the Corpus Christi-San Antonio Highway through the town of Kenedy. Mrs. Creighton was driving north. Mrs. Creighton's car struck the Abernathy car upon its side, causing the Abernathy car to skid to the east, striking Williams, who was near a tree on or near the sidewalk. The plaintiff alleged Mrs. Creighton was driving her car on her left side of the highway; that Abernathy made a sharp turn to his left and headed towards where Williams was standing; that Mrs. Creighton made a sharp turn to her right towards where plaintiff was standing and the cars "violently crashed into each other at said tree, back of which plaintiff had jumped for protection, and both of them violently struck plaintiff," injuring him severely and permanently.
In addition to the allegations that Mrs. Creighton was driving on her left side of the highway and the sharp turns, as stated, it was also alleged both drivers were driving at an unlawful rate of speed, were not maintaining a proper lookout, and failed to have their cars under proper control.
From the plaintiff's viewpoint the evidence shows that, as the cars approached each other, Mrs. Creighton's car veered to her left as if she were about to enter a filling station at that point. Abernathy, for the purpose of passing her swerved his car to his left, whereupon Mrs. Creighton turned her car sharply to her right, striking Abernathy's car on its west side. The impact of the collision skidded the Abernathy car to the east, where it struck Williams, seriously injuring him. Mrs. Creighton's car did not strike Williams. The accident occurred upon a clear day. There was nothing to obstruct the view of either of the drivers. Obviously the collision was caused by the negligence of one or both of the drivers.
At the conclusion of the evidence the Creightons moved for an instructed verdict. Williams moved for leave to file a trial amendment, which reads: "Plaintiff says that as theretofore alleged by him in his original petition, the automobile driven by Mrs. J. O. Creighton at said time and place ran and crashed into the automobile driven by the defendant, Abernathy, and that the defendant Abernathy's automobile by reason thereof, violently struck plaintiff and permanently injured him as alleged in his petition."
Williams' motion was denied. The Creightons' motion was sustained. In response to special issues, the jury found: Abernathy was not driving in excess of 20 miles per hour; Abernathy made a sharp turn to his left with his car immediately prior to the accident; he was not negligent in so doing; Mrs. Creighton, at the time in question, turned her car to her left, and thereafter, and immediately prior to the accident, turned her car sharply to the right; such acts on the part of Mrs. Creighton were the sole cause of the accident; Abernathy did not fail to have his car under proper control and did not fail to keep a proper lookout. Judgment was rendered for defendants.
G. Woodson Morris, of San Antonio and Thomas B. Smiley, of Karnes City, for appellant.
D. O. Klingeman, of Karnes City, and Eskridge Groce, of San Antonio, for appellees.
The record does not affirmatively show the theory upon which the court acted in sustaining the motion of the Creightons. Appellant assumes it was because of the variance between his pleading that he was struck by both cars while the evidence shows he was struck by the Abernathy car only. This is the theory upon which the Creightons seek to sustain the court's action, and we can conceive of no other reason which would have prompted such action.
The gist of the action was the specific acts of negligence charged against Abernathy and Mrs. Creighton and the resulting injuries to the plaintiff caused by the collision. Whether one or both of the crashing cars struck the plaintiff is a minor and unimportant detail in the sequence of events. In the state of the pleadings and evidence it cannot be reasonably assumed the Creightons were in any manner surprised, misled, or prejudiced by the variance between the allegation that plaintiff was struck by both of the cars and the proof that the Abernathy car only struck him. The variance was not fatal. Underwood v. Hall (Mo.App.) 3 S.W.2d 1044; Conley v. Lafayette Motor Car Co., 204 Mo. App. 37, 221 S.W. 165; Jones v. Northwestern Auto Supply Co., 93 Mont. 224, 18 P.2d 305. The court erred in refusing to submit the case as against Mrs. Creighton, for the evidence abundantly raises issues of negligence upon her part proximately causing the collision.
If we err in the view the variance was not fatal, then we are of the further opinion it was error to refuse the plaintiff leave to file the requested trial amendment. The allowance of such amendments rests in the sound discretion of the court, but it should not be refused when such refusal results in a miscarriage of justice and the granting of same could not operate to surprise or otherwise prejudice the opposing side.
If the amendment sought by plaintiff was a necessary one in order to carry his case to the jury as against the Creightons, it should have been allowed, and, under the facts reflected by this record, the court erred in refusing to permit same.
Appellants complain of the refusal to submit a requested issue as to whether Abernathy kept a proper lookout. The refusal of such issue presents no error, for the issue was properly submitted in the main charge.
The judgment as to Abernathy is affirmed; as to the Creightons it is reversed and the cause remanded.