to question a variance is waived by a failure to raise the point on the trial.96 § 167. Amendment to Conform to Proof.-When the variance is such as not to prejudice the rights of the defendant, an amendment should be permitted to make the pleadings conform to the proof.97 To the objection of a variance, where the declaration is consistent with the act but not pleaded, it is held that if for any reason it should have been specially mentioned, plaintiff is entitled to amend.98 Thus, if at the trial the proofs demonstrate that the injury arose outside of interstate commerce, and, therefore, that no recovery could be had under the federal act, the declaration may be amended, or regarded as amended, to conform to the proofs, and a recovery permitted under the statutory or common law, if the petition contains the necessary allegations.99 On this question in Fernette v. Pere Marquette R. Co., 175 Mich. 653, 141 N. W. 1084, 144 N. W. 834, the court said: "His declaration, while it counts upon neither act specifically, was properly held by the learned trial judge to be based upon the liability fixed by the state act. This follows because of the fact that there is no averment in the declaration that, at the time of the accident, defendant was engaged in interstate commerce. At the time plaintiff commenced his action that fact could not have been known by him, and could have been ascertained only with great difficulty and trouble, if at all. Defendant

96. Waiver.-Law v. Illinois Cent. R. Co., 126 C. C. A. 27, 208 Fed. 869; Pennsylvania Co. v. Cole, 131 C. C. A. 244, 214 Fed. 948.

"The failure to observe the markers on the caboose of the freight train was perhaps not definitely alleged as a ground of negligence, but the very first witness sworn in the case was called to testify to the existence of lighted markers upon the caboose; other witnesses gave testimony tending to the same effect, all without objection of variance or surprise. Had objection to this testimony been made on the ground that it was not covered by the petition, amendment could and should have been allowed. Pennsylvania Co. v. Cole, 131 C. C. A. 244, 214 Fed. 948. 97. Amendment to conform to proof. -United States.-Pennsylvania Co. v. Cole, 131 C. C. A. 244, 214 Fed. 948; Law v. Illinois Cent. R. Co., 126 C. C. A. 27, 208 Fed. 869; Southern R. Co. v. Gadd, 125 C. C. A. 21, 207 Fed. 277, affirmed in 34 S. Ct. 696; Strother v. Union Pac. R. Co. (D. C.), 220 Fed. 731; Wabash R. Co. v. Hayes, 234 U. S. 86, 58 L. Ed. 1226, 34 S. Ct. 729.

Kentucky.-Illinois Cent. R. Co. v. Kelly (Ky. App.), 181 S. W. 375; Cincinnati, etc., R. Co. v. Tucker, 168 Ky. App. 144, 181 S. W. 940.

Philadel

Pennsylvania.-Hogarty v. phia, etc., R. Co., 245 Pa. 443, 91 Atl.

854.

98. Fernette ". Pere Marquette R. Co., 175 Mich. 653, 141 N. W. 1084, 144 N. W. 834; Hogarty v. Philadelphia, etc., R. Co., 245 Pa. 443, 91 Atl. 854.

99. Strother v. Union Pac. R. Co. (D. C.), 220 Fed. 731.

In Bitondo v. New York, etc., R. Co., 163 App. Div. 823, 149 N. Y. S. 339, a mistrial was ordered entered where the pleadings made a case under the state law but the evidence showed the parties were engaged in interstate commerce. Though the plaintiff was permitted to amend, the proof showing the requisites to a recovery, the court holds that the change in the issue evidently caused surprise.

In Findley v. Coal, etc., R. Co. (W. Va.), 87 S. E: 198, it is held that when the limitation for an action under the federal act has expired a plaintiff can not amend his complaint to conform to the proof, as this is the bringing of a new action.

In Kentucky it is held that a petition which states a cause of action under one law can not be considered as stating a cause of action under another by the elimination of allegations but that an amendment is necessary in any case and that the defendant sufficiently challenges the right of the plaintiff to recover under the law stated by motion for a directed verdict. Cincinnati, etc., R. Co. v. Tucker, 168 Ky. App. 144, 181 S. W. 940.

was in possession of all the facts touching upon the matter, and upon the trial promptly put them in evidence as a matter of defense. Should plaintiff be held to be debarred from recovery because of his failure to aver in his declaration a fact of which he was in ignorance, and which in the nature of things he could not ascertain? We think it would be a reproach to the administration of justice to so hold. It should be borne in mind that the declaration sets out facts which would impose a liability upon defendant under the federal act if it had charged that, at the time of the collision, defendant was engaged in interstate commerce. We are of opinion that it was not necessary for plaintiff to plead either statute, but that upon the coming in of the proofs it was the duty of the trial court to permit an amendment of the pleadings to conform thereto. It may be that in case of the death of an injured employee a different measure of damages is provided by the two acts. If so, the trial court will instruct the jury as to the proper rule under the applicable act. In this case, plaintiff having survived his injury, the measure of damages would, it appears, be the same under both acts. Our statute of amendments is extremely liberal. C. L. §§ 10,272, 10,273." As it is within the discretion of the trial court to permit an amendment to a complaint so as to conform to the proof, but where a complaint is insufficient to show the existence of any beneficiaries entitled to recovery under the act, it is not an abuse of discretion to refuse an amendment which would show the same after all the evidence has been taken and there is no evidence in the record that would support the amendment.1

§ 168. Objections and Waiver.-Objections should be made when a question is propounded and not after a witness has answered, and where evidence which is competent when introduced is shown by subsequent evidence to be incompetent, the party prejudiced thereby should move for its exclusion.3 Evidence admitted over objection is harmless error when other witnesses testified to the same facts without objections.*

1. Abuse of discretion in refusing, when no evidence to support amendment. Illinois Cent. R. Co. v. Doherty, 153 Ky. 363, 155 S. W. 1119, 47 L. R. A., N. S., 31.

2. Time of objection.-St. Louis, etc., R. Co. v. Duke, 112 C. C. A. 564, 192 Fed. 306, 309.

3. Excluding evidence subsequently becoming incompetent.-Kansas, etc., R. Co. v. Leslie, 112 Ark. 305, 167 S. W. 83, reversing on other grounds in 35 S. Ct. 844.

the motion of the defendant, but he having failed to make such motion and the evidence being clearly competent when introduced, he can not complain that it were not excluded and it was rendered less harmful by an instruction of the court that they should not consider any negligence not alleged to have occurred at the time of the accident. Kansas, etc., R. Co. v. Leslie. 112 Ark. 305, 167 S. W. 83, reversed on other grounds in 35 S. Ct. 844.

4. Evidence of other witness showing same facts as waiver.-United States. St. Louis, etc., R. Co. v. Duke, 112 C. C. A. 564, 192 Fed. 306, 309.

South Carolina.-Mims 2. Atlantic, etc., R. Co., 100 S. C. 375, 85 S. E. 372; Mulligan v. Atlantic, etc., R. Co. (S. C.), 88 S. E. 445.

Texas.-Southern Pac. Co. v. Vaughn (Tex. Civ. App.), 165 S. W. 885, writ of error denied in 170 S. W. xix, no op. Vermont.-Lynch . Central, etc., R. Co. (Vt.), 95 Atl. 683.

In order to obtain a review on appeal objections to the admission of testimony should state wherein it is objectionable.5 And an objection to evidence as irrelevant is not sufficient to justify its exclusion on special grounds.6 And where evidence is objected to, and the court in response to the objection states that he does not admit it generally, but admits it for a special purpose, and counsel for the objecting party, upon ascertaining the purpose for which it is to be admitted, make no further objection to it, no valid assignment of error can be based on the court's act in admitting it.7

In Dutton v. Atlantic, etc., R. Co.8 testimony was admitted for the purpose of showing that the intestate did not have any property at the time of his death other than his salary as an employee, and no insurance, with which to support his family, and that neither the widow nor the children had any property at the time of his death. The only ground of objection to the admissibility of the testimony was that it was irrelevant. But as the relevancy of the testimony is left, in large measure, to the discretion of the presiding judge; it was held that his ruling will not be reversed on appeal, unless it clearly appears that his discretion was erroneously exercised, to the prejudice of the appellant's rights, which has not been made to appear in this case. But such evidence would seem to be inadmissible and as subsequently stated by the court, while the evidence was admissible for the purpose of showing the dependency of the widow and children upon the decedent, the damages were limited to the pecuniary loss sustained, but had the objection to its admissibility been raised that it could not be considered by the jury as an element of damage, and admitted over such objection quite a different question would have been presented. So too, where questions are ruled out as evidence, it must be made to appear of record what the expected answer will be, so that the court may see their materiality and relevancy, or exceptions taken thereto will not be considered.9

The defendant does not waive its right to show that the federal law applies to a case by having proceeded in the first trial under a declaration. which did not state an action under the act and defeated the same for the error of the court in directing a verdict against it.10

While the reports of an inspector upon the explosion of a boiler made under the requirement of the boiler inspection act 11 are not to be used "for any purpose in any suit or action for damages growing out of any matter

5. Sufficiency of objection to assign error.-Pennsylvania Co. v. Sheeley, 137 C. C. A. 471, 221 Fed. 901; Pennsylvania Co. v. Cole, 131 C. C. A. 244, 214 Fed. 948.

North Carolina.-Renn v. Seaboard, etc., Railway (N. C.), 86 S. E. 964.

6. General objection as irrelevantWhen inadmissible on special grounds. -Dutton v. Atlantic, etc., R. Co. (S. C.), 88 S. E. 263.

7. Bowers v. Southern R. Co., 10 Ga. App. 367, 73 S. E. 677.

8. (S. C.), 88 S. E. 263, 266.

9. Tilghman v. Seaboard, etc., R. Co., 167 N. C. 163, 83 S. E. 315, 1090, reversed on other grounds in 35 S. Ct.

653.

10. Waiver by permitting first trial under state law. Findley v. Coal, etc., R. Co. (W. Va.), 87 S. E. 198.

11. Act Feb. 17, 1911, c. 103; 36 St. 916; Comp. St. 1913, 8637.

mentioned in said report or investigation," the fact that plaintiff's counsel used such a report during the cross-examination of one of defendant's witnesses there is no prejudice to the defendant, when after the examination had continued some time, defendant's counsel objected to the line of crossexamination but not to the admissibility of the report, and the report was subsequently offered in evidence but refused, and defendant's counsel had in his opening statement challenged the plaintiff to produce the report.12

12. Reports on accidents not to be used as evidence-When waived.-Don

aldson V. Great Northern R. Co. (Wash.), 154 Pac. 133.

CHAPTER XXIV.

WITNESSES.

1. Competency, § 169.

2. Confidential Communications to Physician, § 170.

3. Absent Witnesses, and Failure to Procure or Call Witnesses, § 171. 4. Conduct of Witnesses on Stand, § 172.

§ 169. Competency.-The competency of witnesses is regulated by the law of the forum.1 Witnesses whose experience as to loading was confined to inspections at junction points, made under rules adopted by most railroads but not defendant, are competent as to the proper loading of cars, because as between the proper standard of safe loading for hauling from the point of shipment and the proper standard for transfer at junction points there can be no such substantial dissimilarity that one can have no bearing on the other.2 A fireman whose only knowledge of an engine was confined to the trip on which it exploded, 18 miles in distance and an hour in time, is not qualified to give an opinion concerning the engine, boiler and appurtenances. Where the trial court has found as a fact that one testifying as a medical expert has qualified himself to give the testimony sought of him, it is immaterial to what school of medical thought and practice the witness belongs, and an exception that the witness was an osteopath cannot be sustained. So too, when the court has found a witness qualified as an expert, having had a long experience in surgery under exceptionally advantageous circumstances both in this county and abroad, he is competent to testify as to the benefits and advantages of a comparatively new operation; which is not subject to objection on the ground that he had never himself performed it. A conductor may from his observation and knowledge be sufficiently expert to testify as to the duties of a division road

master.6

In an action brought by the administrator of the deceased, for the benefit of the mother, under the act, to recover for the pecuniary loss she has sustained in the negligent killing by the defendant railroad company of her son, it is competent for her to testify as to what pecuniary benefits she had

1. Competency.-Bowers v. Southern R. Co., 10 Ga. App. 367, 73 S. E. 677.

A witness in this state is not rendered incompetent by conviction of a felony, or other crime, irrespective of whether the conviction be had in this state or in another state, and irrespective of whether the conviction in the state in which it was had carries with

it incompetency to testify or not. Bowers v. Southern R. Co., 10 Ga. App. 367, 73 S. E. 677.

2. Competency as experts.-Michigan Cent. R. Co. v. Schaffer, 136 C. C. A. 413, 220 Fed. 809.

3. Virginian R. Co. v. Andrews (Va.), 87 S. E. 577.

4. Ferebee v. Norfolk, etc., R. Co., 167 N. C. 290, 83 S. E. 360, affirmed in 35 S. Ct. 781.

5. Niles v. Central, etc., R. Co., 87 Vt. 356, 89 Atl. 629.

6. Lynch v. Central, etc., R. Co. (Vt.), 95 Atl. 683.