[No. 10027.

Department Two.

August 21, 1912.]

#### C. S. Hood, *Respondent,*v. John Gerrick *et al., Appellants.*
      *1*

Continuance—Pleadings—Amendment. It is not error to refuse a continuance asked on account of a trial amendment to the complaint, stating in more detail matters that had been stated generally in the original pleading, where the amendment was not very material and did not affect in any way the issues on the merits or require different proofs to meet it.

Physicians and Surgeons—Services—Contract. Upon a general contract of hire to furnish such medical and surgical treatment for an employee as the physician may find necessary, a second operation is within the contract, if it was necessary for the recovery of the patient.

Appeal from a judgment of the superior court for What-com county, Hardin, J., entered June 19, 1911, upon findings in favor of the plaintiff for services performed, etc., after a- trial to the court.

Affirmed.

*Milo A. Root,*for appellants.

*Neterer fy Pemberton,*for respondent.

Reported in 125 Pac. 956.

Per Curiam.

One Larry George, while in the employment of the appellants as foreman superintending the construction of a railroad bridge, met with an accident. Some person, in no way connected with the appellants, called the respondent to attend the injured man. He responded to the call, gave the injured man medical and surgical aid, procured temporary hospital quarters, and engaged- the services of a professional nurse. Mr. George’s injuries were of a serious nature. His right leg was crushed from the knee down, requiring immediate amputation; his left leg between the knee and the ankle, his right arm between the elbow and the shoulder, his right clavicle, and two of his ribs, were broken; he received an injury to the spine, severe contusions on vari*608ous parts of the body, and a severe scalp wound. Neither of the appellants were present at the place of the accident at the time it occurred. Some five days thereafter, John Ger-rick appeared at the place where the injured man was being cared for, and according to the respondent, made an arrangement for his future care. The respondent testified that he explained to Gerrick the desperate nature of George’s injuries, the necessity of keeping a nurse with him at all hours of the day and night, the number of nurses that would be required for that purpose, and the cost of their services; that Gerrick knowing these facts arranged with him to continue the care and treatment of the injured man, employ such assistants as he found necessary and promised that the appellant firm would pay the expense thereof. The- respondent continued his treatment until the appellant left the hospital, rendering bills to the appellants for his services, a small part only of which were paid. The respondent' sued for the services of himself and the nurses he employed for the entire period of service, those performed before the appearance of John Gerrick, as well as those performed afterwards. The appellants denied liability for any part of the services. The issue was tried by the judge sitting without a jury, and resulted in a judgment in favor of the respondent for the value of his services subsequent to the time of the purported hiring by John Gerrick, and for the services of the nurses subsequent to that time. This appeal is from the judgment rendered.

During the course of the trial, the court granted the respondent permission to amend his complaint, and refused to continue the cause on the motion of the defendant after such leave had been granted. The appellant has assigned error upon both of these rulings^ but we find nothing in them that calls for a reversal. The amendment itself was not very material. It simply alleged, with more detail matters that had been stated too generally perhaps in the original pleading. It did not affect in any way the issues on the merits of the *609claim and required no different proofs to meet its allegations than were required to meet the allegations of the original complaint. There could be, therefore, no error in allowing the amendment nor surprise on the part of the defendants warranting a continuance.

The contention is made that the evidence is insufficient to support the judgment as a whole, and it is complained particularly that the recovery is too large. But on both of these questions we think the findings of the trial court are justified. No recovery was allowed for the services of the plaintiff and the nurses prior to the time the agreement was had between John Gerrick and the respondent, and the respondent in his proofs had some difficulty in segregating the value of his services at that precise line, but his evidence shows services performed subsequent to that time of the reasonable value allowed by the court. It is objected that a charge of $125 made for a second operation on George’s broken leg was not within the terms of the contract proven, but we think it was. The contract of hire was general, it was to furnish the injured man with such medical and surgical treatment as in the judgment of the respondent was necessary for his recovery ; and if the respondent found it necessary to perform another operation upon his leg—and the proofs show it was so necessary—he has the same right to perform and recover for that service as he has for any other medical or surgical service rendered him. The judgment will stand affirmed.