
    Britton et al. v. Sappie et al.
    
      George F. P. Langfttt and Frank J. Zappala, for plaintiffs.
    
      W. A. Blair, for defendants.
    July 26, 1934.
   Elder W. Marshall, J.,

This is one of the rare cases where a party was justified in pleading-surprise because his opponent was allowed to amend during the course of the trial.

The defendants had no previous intimation that the woman plaintiff had or claimed to have the disorder described in her amendment. On such short notice they were unable to subpoena the physician she claimed had attended her for such ailment, but whom, for some unexplained reason, she did not produce as a witness. She admits she failed to inform either of defendants’ physicians that she was suffering from the physical disturbance in question.

Under the circumstances the case should have been continued to allow defendants to make the necessary investigation and to call such additional witnesses as they deemed proper. Since a continuance was refused, the only remedy now at hand is to grant a new trial.  