In their motion for a rehearing of this case the movants contend that the error, if error, in striking the amendment to the petition was harmless, since on the trial the plaintiff was permitted to offer and to have admitted all the evidence that he could have had admitted if the amendment had been allowed. The record does not affirmatively support this contention. It does appear therefrom that some evidence in support of some of the allegations of the stricken amendment was admitted, but it fails to appear that such evidence was not admitted for limited purposes only. And it does not appear that all of the evidence that would have been admissible, if the amendment had been allowed, was admitted on the trial. The cases cited by movant, which hold that where all evidence, which could have been admitted in support of a stricken amendment, was thereafter admitted, the error in striking the amendment was harmless, are differentiated from this case. Since an error by the court "is presumed to be harmful to the *Page 232 losing party, unless the contrary plainly appears," the error "must be held to have been prejudicial," and a new trial should be granted.Battle v. Royster Guano Co., 155 Ga. 322 (3) (118 S.E. 343). In the instant case this court can not hold that it "plainly appears" that the plaintiff was permitted to introduce all the evidence that he could have introduced had the amendment in question been allowed. The other grounds of the motion show no cause for a reversal of our judgment.
Judgment adhered to. MacIntyre and Gardner, JJ., concur.