Thillman v. Neal

Citations

• 88 Md. 525
• 42 A. 242
• 1898 Md. LEXIS 247

Syllabus

<p>Making New Party Plaintiff by Amendment — Discretion of Trial Court — Appeal—Re-swearing the fury after Making New Party — Assault and Battery — Instructions to the fiiry — Damages.</p> <p>When a new party plaintiff in an action at law is made after the jury is sworn, the objection that the jury was not sworn again, assuming the same to be a valid objection, can only be raised on appeal by motion in arrest of judgment. The question is not properly presented by an exception taken to the action of the Court in granting leave to make the amendment.</p> <p>Under Code, Art. 73, sec. 37, the trial Court has the power to allow an amendment to be made by which a party plaintiff is added or stricken out and no appeal lies from the action of the Court in granting leave to make such an amendment.</p> <p>A married woman sued by next friend for personal injuries. At the beginning of the trial the Court allowed an amendment to be made by which the plaintiff’s husband was joined as co-plaintiff and his appearance as next friend struck out. Defendant excepted to the amendment and the bill of exceptions showed that it was made after the jury had been sworn. On appeal, defendant objected to the validity of the judgment because the jury was not re-sworn after the addition of the new plaintiff. Held, that even if this objection be valid, yet the fact that the bill of exceptions shows that the amendment was made after the swearing of the jury does not warrant the inference that they were not re-sworn, especially when the docket entry showing that the jury was sworn follows after a docket entry showing that the amendment was made.</p> <p>In an action for assault and battery to the person, an instruction to the jury that if they find for the plaintiff they may allow damages for the injury to the person and feelings suffered by the plaintiff by reason of the unlawful act of the defendant if they find that the defendant assaulted and struck the plaintiff, is not misleading. It does not l