Opinion
No. 12897.
Argued March 27, 1956.
Decided April 19, 1956.
Mr. Joseph S. McCarthy, Washington, D.C., with whom Mr. Wilbert McInerney, Washington, D.C., was on the brief, for appellant.
Mr. John Alexander, Washington, D.C., with whom Mr. James K. Hughes, Washington, D.C., was on the brief, for appellee.
Before WILBUR K. MILLER, BAZELON and DANAHER, Circuit Judges.
Appellee recovered a $35,000 judgment in her personal injury suit against appellant whose counsel admitted liability in his opening statement to the jury. Reversal is sought on the ground that, since the pretrial order did not include the issue whether the accident caused or aggravated appellee's rare systemic disease of scleroderma, the trial court erred in permitting appellee to raise it. The record clearly shows, however, that appellant's counsel was aware that appellee was afflicted with the disease; that he professed some knowledge of its medical aspects; and that he did not ask for a continuance. In light of these circumstances, appellant may not claim prejudice by surprise. Since there is no error affecting substantial rights, the judgment is
Rabenovets v. Crossland, 1943, 78 U.S.App.D.C. 54, 137 F.2d 675.
Affirmed.