
    DAM AGES — EVIDENCE.
    [Franklin (2nd) Circuit Court,
    January 29, 1906.]
    Wilson, Sullivan and Dustin, JJ.
    Pittsburgh, C. C. & St. L. Ry. v. George M. Boswell.
    Plaintiff Claiming New Injury may not Show that Injury was in Fact an Aggravation of an Old Injury.
    Where, in an action for an injury sustained, plaintiff alleges that the damage resulted from a hernia caused by the accident, and maintains throughout the proof that he did not have hernia before the accident, such pleading of fact is descriptive and must be literally proven, and he may not recover for an aggravation of a hernia shown to have existed prior to the accident, which aggravation was due to the accident complained of. Nor may he, after thus pleading, and claiming that there was no variance between pleading and proof, avail himself of the curative provisions of Rev. Stat. 5294 (Lan. 8806).
    Error to Franklin common pleas court.
    Henderson, Livesay & Burr, for plaintiff in error.
    J. V. Lee and E. M. Murphy, for defendant in error.
   WILSON, J.

The plaintiff below, George M. Boswell, sued to recover damagés as for .the breach of a contract with the Voluntary Relief Department to pay benefits for injury incurred in tbe service of tbe defendant company, plaintiff in error bere.

He averred, “That on the seventh day of May, 1896, be was engaged in raising and jacking up a heavy oak timber in order to fasten it underneath the body of a passenger coach of the defendant, which was placed on trestles, when the jack accidentally gave way and the said timber fell upon plaintiff, knocking him down and spraining .his back, and causing hernia or rupture. ’ ’

By the answer this averment is specifically denied.

Upon the trial of the case there was evidence introduced by the ■defendant that the plaintiff had rupture before the accident, and also evidence that the hernia, when examined after the accident was what is known as complete hernia, while when examined before the accident it had been incomplete.

The contention of the plaintiff, however, throughout the case, both in the pleadings and the evidence, was, that he did not have hernia before the accident.

There is also a conflict of evidence as to whether the character of the accident was such as would cause or aggravate the hernia.

The defendant requested the court to cliarge the jury as follows:

“Plaintiff sues for an alleged injury on account of a sprained back and a left inguinal hernia, which he alleges resulted from an accident occurring to him on May 7, 1896, while in the employ of the defendant •company, and for which accident he claims to be entitled to benefits as a member of the relief department of said company.
“If you find therefore that on the twenty-ninth day of March, 1895, plaintiff was examined for admission to the relief department of the defendant company, and the examining physician then and there found that plaintiff had a left inguinal hernia, and that the hernia was ■and is the same as that complained of by plaintiff as a result of the alleged injury on May 7; 1896, and that said hernia was not the result •of said alleged injury, then I charge you the plaintiff is not entitled to .any damages by reason of the hernia, as aforesaid.”

This charge the court refused to give, charging the jury instead .as follows.

“If you find the fact to be, that plaintiff had a hernia prior to the time of the accident complained of, and ¿hat the hernia which he had prior to-the accident was and is the same hernia of which he claims in his petition, and that such hernia was not the result of an injury received by him as alleged, then the plaintiff is not entitled to any damages by reason of the hernia. But if he had an incomplete hernia before the accident which did not disable him, and the accident caused a worse- or complete hernia which did disable him, then he is entitled to recover damages for such disability, unless he is precluded from recovery upon other grounds.”

It is claimed this is error for which the judgment, which was-for the plaintiff below, should be reversed.

“There are two sorts of allegations:

“The one, of matter of substance, which must be substantially proved; the other, of description, which must be literally proved.” Purcell v. Macnamara, 9 East 160:
“The libel in a cause of collusion pleaded that the default took place in a particúlar manner: Held, that such defaults must be-proved in the manner in which it is alleged in the pleading. It is not enough to establish by evidence that the default was committed in another manner, although the result would be the same on the merits,, as the court will confine its judgment to the issue raised on the pleadings.” Malcomson v. Clayton, 13 Moore P. C. C. 198.

In the opinion in this case just cited Lord Chelmsford states the reason for the rule in the following language:

“Now it is a rule, and a most important rule to be observed in all courts, that a party complaining of an injury and suing for redress must recover only secundum allegata et probata. There is no-hardship or injustice in adhering strictly to the rule against the complainant, for he knows the nature of the wrong for which he seeks a remedy, and can easily state it with precision and accuracy. But great inconvenience could follow to the opposite party unless the strictness was required, because he might constantly be exposed to the disadvantage of having prepared himself to meet one state of facts, and finding' himself suddenly and unexpectedly confronted by a totally different one. ’ ’

The character of the injury for which benefits are claimed under-the contract in this case is matter essentially descriptive, and must be strictly proven. It is alleged to be hernia or rupture. Under such allegations the plaintiff is- not entitled to prove and recover as for-an aggravation of hernia which theretofore existed. The two injuries, may be proved or disproved by a different state of facts and caused by different agencies. The aggravation might result from lapse of time-merely; the hernia could not. Wilkinson v. Steel & Spring Works, 73 Mich. 405 [41 N. W. Rep. 490].

Consequences flowing from the act must be alleged if they do not naturally result therefrom. Stevenson v. Morris, 37 Ohio St. 10, 18.

The charge was prejudicial.

The plaintiff' claiming throughout the proof, that he did not have-rupture before the accident, and that there was no variance between the allegations of-the petition and the proofs, was not entitled under the charge of the court to avail himself of the curative • provisions of Rev. Stat. 5294 (Lan. 8806); Thatcher v. Heisey, 21 Ohio St. 668; Hill v. Road Dist. No. 6 (Supvr.) 10 Ohio St. 621.

It follows, there is error in the refusal to charge as requested, and error in the charge as given. Also that the verdict and judgment are against the weight of the evidence. It is fairly proven that the hernia existed before the accident.

We find no other error in the record.

The judgment will be reversed and cause remanded for new trial.

Sullivan and Dustin, JJ., concur.  