Opinion
Hobbs s&sLonginotti, Hot Springs, for appellant.
Laser, Sharp, Haley, Youngs&sBoswell, Little Rock, for appellee.
HICKMAN, Justice.
The appellant raises three arguments on appeal of a Garland County Circuit Court judgment. The arguments regard pre-trial procedure and are all interrelated. The trial judge permitted the appellee, over appellant's objections, to proceed to trial on an amended answer filed a day or so before trial; denied the appellant's motion for continuance; and, denied a motion to strike the amended answer because it was not verified. The appellant alleged these rulings were error requiring reversal. We disagree.
The appellant was injured in an automobile accident in 1973 while she was a passenger in a vehicle driven by the appellee. She filed suit against the appellee alleging that his intoxication and driving too fast on the wrong side of the highway caused the accident which injured her. The appellee, in answer, generally denied the allegations and alleged the affirmative defense of the guest statute. Some two years later the matter was set for trial.
About three days before the trial date the appellee filed an amended answer, without leave of the court, pleading the additional affirmative defense of assumption of risk.
The appellant's lawyer, who stated the amended answer was not received until the day before trial, objected; but, the trial judge, finding no prejudice, permitted the amended answer to be filed.
The pleadings filed especially the interrogatories and answers thereto clearly raised the problem of the appellant's knowledge of the appellee's intoxication. The appellee was asked if he consumed alcohol in the appellant's presence and would the appellant have any knowledge of the consumption before she got into the vehicle. The appellee answered that not only did the appellee drink in the appellant's presence before they entered the car, but also that the appellant fixed him a drink and consumed some herself.
An amendment should not be allowed if a party is surprised or materially misled. Bates v. Simmons, 259 Ark. 657, 536 S.W.2d 292 (1976). From these facts it would not seem the appellant was surprised nor materially misled by the amended pleading.
The court in its discretion permitted the amendment and we cannot say it was clearly an abuse of discretion.
The appellant moved for continuance when the trial court permitted the amended answer to stand. This motion was denied. Both parties announced ready for trial except for the procedural disagreement. A trial court may grant a continuance after pleadings are amended if satisfied the adverse party could not be ready for trial. Ark.Stat.Ann. 27-1402 (Repl. 1962). The court, after listening to arguments of counsel, decided the appellant's attorney knew his case and could proceed without prejudice. Again, we cannot say the trial court clearly abused its discretion.
The appellant's objection to the unverified pleading was, of course, an objection to form rather than substance. We do not find this omission sufficient reason to set aside the judgment. Lowery v. West Memphis Tran. Co., 255 Ark. 198, 500 S.W.2d 375 (1973).
Our review satisfies us that the trial court's tolerance of the appellee's attorney's last-minute preparation for trial did not prejudice the appellant's right to a fair trial.
Affirmed.
We agree: HARRIS, C. J., and GEORGE ROSE SMITH and HOWARD, JJ.