Opinion
June 29, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 577
Phelps, Fonda, Hays, Farley, Abram & Shaw, Garrett Fonda, Pueblo, for plaintiff in error.
Louis J. Stuart, Pueblo, for defendant in error.
ENOCH, Judge.
This case was transferred from the Supreme Court pursuant to statute.
This case involves an automobile rearend collision. The plaintiff in error, Burrows, was defendant below, and defendant in error, Reed, was plaintiff. Trial was to a jury. At the close of all the evidence, the trial court directed a verdict for the plaintiff on the issue of defendant's liability. Thereafter, the jury rendered its verdict for the plaintiff in the amount of $11,080.
The accident occurred shortly after noon on April 27, 1967. Defendant was driving about 25 m.p.h. approximately 30 to 35 feet behind plaintiff in the right center lane of a four lane street in Pueblo, Colorado. Plaintiff made an emergency stop to avoid hitting another automobile which had stopped in front of her. Immediately prior to the accident, defendant intended to change into the right lane. In preparing to do so, he turned his head from the traffic in front to see if the right lane was clear behind him. Upon returning his attention to the front, he saw the plaintiff in the process of stopping. Defendant immediately applied his brakes, but was unable to avoid colliding with the rear of plaintiff's automobile with considerable force.
Plaintiff filed an amended complaint on October 9, 1968 and trial was held on March 4, 1969. Plaintiff had been examined by her own physician and upon the defendant's request, by another physician. On March 3, 1969, the day before the trial, she was again examined by her physician who concluded she had sustained some permanent disability. Consequently, on the morning of the trial, plaintiff's attorney orally amended paragraph 6 of the complaint as follows, the italicized portion being the added amendment:
'6. That as a direct and proximate result of the negligence, recklessness and carelessness of the defendant, the plaintiff was unable to work for a period of twenty weeks following her accident, sustained severe and serious pain and injury, aggravation of a pre-existing condition in her neck permanent in nature, all to her damage in the sum of $20,000.00.'
Contemporaneously, the prayer was amended from $20,000 to $25,000. This amendment was allowed by the trial court over defendant's objection. Defendant again renewed his objection at the outset of the second day of trial, which was again overruled. The trial concluded after the second day with a verdict of $11,080 in favor of plaintiff.
I
The defendant alleges the trial court erred in allowing plaintiff to amend her complaint prior to trial. The defendant bases this allegation of error on the assertion that the amendment severely prejudiced his rights by injecting a new element into the case, I.e. claim for permanent injuries.
We do not agree. The amendment by interlienation did not change the theory of the action; nor did it constitute a material change in the allegations of the complaint upon which the trial proceeded. Under R.C.P.Colo. 15, amendment of a pleading after a responsive pleading has been filed lies within the discretion of the trial court. Where no abuse of discretion is apparent, the ruling of the trial court will not be disturbed. See, Coon v. Guido, Colo., 459 P.2d 282; Law v. Simon, 110 Colo. 545, 136 P.2d 520.
II
The defendant alleges the trial court erred in refusing to grant his motion to vacate the trial on the second day. Plaintiff's physician testified on March 4th, the first day of trial, as to the results of his examination of the plaintiff on the previous day. On the morning of March 5th, the defendant moved to 'vacate the trial' on the grounds that his expert witness did not have sufficient opportunity to examine the evidence supporting the prognosis of plaintiff's physician. The court refused to grant defendant's motion. Although defendant had an opportunity to examine the exhibits overnight, the court granted defendant's witness 'such time as, in his opinion, is necessary to evaluate all of the X-rays that have been tendered into evidence, and if, in his judgment, more time is required than that which has already been used to compare X-rays . . . such additional time as the day permits will be allowed for defendant's doctor to examine the X-rays and the testimony accordingly.'
Thus, the defendant was given adequate opportunity to evaluate the plaintiff's medical testimony.
Both parties quote portions of 17 Am.Jur.2d, Continuance s 24. We believe that section to be a correct statement of law in this case and quote it in part as follows:
'A substantial amendment or subsitution of a pleading to the surprise and prejudice of a party is ground for a continuance; however, the matter of granting or refusing an application based on the ground is largely discretionary with the court, and its ruling will not be disturbed unless an abuse of discretion is shown.'
'To obtain a continuance on this ground the applicant must show how he is prejudiced by the amendment, since an amendment, whether made before or during trial, which does not affect the merits or in reality surprise or prejudice the adverse party, is deemed immaterial and not ground for a continuance. An amendment at the trial which changes the form of the action or sets up a new and different cause of action ordinarily entitles the opposite party to a continuance, as does a trial amendment setting up a new and distinct defense. But if the facts on which such a defense is based are necessarily involved in the defenses originally pleaded, the amendment will not be deemed to work a surprise. An amendment which merely amplifies and sets forth with greater particularity the circumstances of the cause of action set out in the original pleading, or changes the averment of time or place, or the description of the subject matter, is usually considered immaterial. A similar view is usually taken of an amendment which merely gives a more particular description of the personal injuries sued for.' (Footnotes omitted)
The amendment in this case did not affect the merits of the trial and was not 'substantial' and 'prejudicial'. It did not change the cause of action. Rather, it merely amplified and set forth with greater particularity the description of the personal injuries. The trial court did not abuse its discretion in refusing to grant a continuance.
III
In asserting that the trial court erred in directing a verdict for the plaintiff as to defendant's liability, the defendant relies on Gaulin v. Templin, 162 Colo. 55, 424 P.2d 377, which held a plaintiff could be charged with contributory negligence in making a sudden or abrupt stop. However, the Supreme Court limited this holding to Unwarranted sudden and abrupt stopping. The circumstances in this case show the plaintiff's sudden stop was of an emergency nature, thus warranted. Viewed in the light most favorable to the defendant, the trial court did not err in directing a verdict as to defendant's liability. See, Thompson v. Tartler, 166 Colo. 247, 443 P.2d 365; Mosely v. Lamirato, 149 Colo. 440, 370 P.2d 450.
IV
Defendant claims the jury's verdict of $11,080 was excessive. The record shows plaintiff suffered a total of approximately $2,500 out of pocket expense due to medical and miscellaneous expenses and loss of wages. Hence the jury must have attributed the difference to pain and suffering or compensation for permanent disability. The Supreme Court stated in Mosely, supra, 'It is difficult at the best to translate personal injury into dollars, and the jury's determination of damages suffered should not be set aside unless it clearly appears that the award is grossly excessive and motivated by something other than the evidence in the case. No such situation prevails in the instant case.' We do not find the award in this case to be grossly excessive or motivated by anything other than the evidence.
Judgment affirmed.
COYTE and DUFFORD, JJ., concur.