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FREER v. PARKER (07/02/63)

July 2, 1963

FREER
v.
PARKER, APPELLANT.



Appeal, No. 409, Jan. T., 1962, from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1958, No. 2942, in case of Harry B Freer v. Leroy Parker. Judgment affirmed.

COUNSEL

Alfred Sarowitz, for appellant.

Richard J. Raab, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Musmanno

[ 411 Pa. Page 346]

OPINION BY MR. JUSTICE MUSMANNO

Leroy Parker, the defendant-appellant in this case, moved for a new trial in the court below on two

[ 411 Pa. Page 347]

    grounds: (1) that the verdict was against the weight of the evidence; (2) that there was a variance between the allegata and probata. He has since dropped his claim that the verdict was against the weight of the evidence and argues for a new trial on the second ground alone.

The plaintiff, Harry B. Freer, averred in his complaint that, as a result of the automobile collision, for which the defendant was responsible, he sustained various hurts, injuries and disablements, one of them being "loosening of teeth." At the trial the plaintiff's dentist testified that prior to the accident the plaintiff suffered from some loosening of teeth but that the violence of the collision, of which he was a victim, had further loosened his teeth, that they were "mobile," that "you could shake them with your fingers," and that he "splinted the teeth together to try to allow the bone to regenerate and tighten the teeth."

The defendant argues that there was thus demonstrated a variance between allegata and probata and that this variance entitles him to a new trial. The reason why the probata is required by law to concur with the allegata is that otherwise the defendant in a lawsuit would not know what he might be confronted with at the trial and he thus could not properly prepare for it.*fn* If, for instance, a plaintiff avers that his left arm was severed as a result of the litigated event and then stamps into court on a wooden leg, his arms intact, the defendant can well object because he has been caught by surprise. But if the plaintiff, as is the fact in this case, states in his complaint that as a result of the legal bone of contention his teeth were loosened and the lay as will as medical evidence addresses itself to teeth loosening, it is difficult to see how the defendant can reasonably argue that he was

[ 411 Pa. Page 348]

    left in the dark as to what to expect at the ...


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