Riefling v. Juede

CAULFIELD, J. (after stating the facts). — I. The contention that the trial court erred in refusing defendant Juede a continuance on account of the amendment to the petition made at the close of plaintiff’s evidence is without merit. If the allegation of the petition, that a doctor’s prescription was given te Juede, meant that it was in writing, still the discrepancy between that allegation and the proof that the-prescription was oral did not constitute a failure of proof, and the amendment to meet it did not change-the cause of action. The gist of the cause of action was-the negligence of defendant Juede in substituting and delivering to plaintiff a poisonous drug for the harmless one which his firm, by him, had undertaken to prepare and deliver, and whether the prescription for the harmless drug was oral or written was an unimportant particular which might have been pleaded or not without affecting the sufficiency of plaintiff’s statement of' [224] bis cause of action. At tbe most the discrepancy between tbe pleading and tbe proof as to this single unimportant particular was a mere variance. [Beck v. Ferrara, 19 Mo. 30.] By failing to object to tbe evidence of an oral prescription, defendant waived tbe point that tbe proof was not responsive to tbe pleading (Von Trebra v. Gasligbt Co., 209 Mo. 648, 108 S. W. 559); and by failing to show by affidavit that be was misled by tbe variance to bis prejudice, be rendered tbe variance immaterial, as matter of law. [Litton v. Railroad, 111 Mo. App. 140, 85 S. W. 978.] Tbe statute provide that in case of an immaterial variance, such as this, “Tbe court may direct tbe facts to be found according to the evidence or may order an immediate amendment without costs.” [R. S. 1909, Sec. 1847.] It is clear from this provision that a party is not entitled to have tbe trial stopped and tbe cause continued because of an immaterial variance, whether tbe pleading be amended or not, for tbe court may ‘ direct tbe facts to be found according to tbe evidence” without amendment, and if tbe amendment is made it is to be “immediate.” It would be trifling with justice were it otherwise. No greater absurdity could be imagined than a requirement that a party be granted a continuance because of an amendment made to cure a waived and immaterial variance. There is no such requirement. [Edge v. Electric Ry. Co., 206 Mo. 471, 501, 104 S. W. 90.] Under another section (R. S. 1909, Sec. 1961) it is incumbent upon a party who would have a continuance on account of an amendment by tbe other to satisfy tbe trial court by affidavit or otherwise that be “could not be ready for trial in consequence thereof.” If this section is applicable, defendant entirely failed to comply with it. He objected to tbe amendment on tbe sole ground that it changed tbe cause of action. Being overruled, as hé should have been, be asked that tbe case be continued for tbe sole purpose of enabling him [225] to make the same objection “by proper pleas,” and tbe court very properly denied this request. Then it developed that this defendant conceded, and knew all tbe time, that tbe prescription was oral, and, as we construe an affidavit made by bis counsel after verdict, tbe latter knew that tbe proof would so show and could not show otherwise. There could not be error in refusing to grant a continuance in such a case. [Peterson v. Met. Street Ry. Co., 211 Mo. 498, 111 S. W. 37.] II. Tbe defendant Juede assigns as reversible error tbe remarks of Kersting, counsel for Hemm. We do not believe that tbe jury could reasonably have construed these remarks to be anything more than an admission of liability being made by Hemm for himself alone. Tbe defendants were represented by separate counsel and it was made clear during tbe trial that such counsel were not acting in harmony and that .each acted for bis client and not for the other defendant. Defendant Hemm bad a right to admit bis own liability. If defendant Juede thought tbe language used might be construed to be an admission for him, be should have objected to it for that reason so that tbe trial court might cure tbe error. [State v. Phillips, 233 Mo. 299, 307, 135 S. W. 4; 38 Cyc., p. 1508.] He did not do this but contented himself with a mere general objection, which meant nothing. Of course tbe courts will not allow anything on tbe part of one defendant to be done by collusion with tbe plaintiff for tbe purpose of defrauding the other defendant of bis rights, but tbe trial court has determined that there was no such collusion or fraud in this case. We are satisfied that this judgment is for tbe right party, is not for an excessive amount, and should be affirmed. It is so ordered. Reynolds, P. J., and Nortoni, J., concur.