
    PLEADINGS — VARIANCE.
    [ Circuit Court of Franklin County.]
    The P., C., C. & St. L. Railway Company v. George M. Boswell.
    Decided, January 29, 1906.
    
      Pleadings — Proof must Correspond with Allegations of Petition• — Matter Essentially Descriptive of an Injury must he Strictly Proven— Under a Petition Alleging that the Injury toas Caused hy an Accident — Plaintiff can not Recover hy Showing Aggravation of Injury Existing Before Accident.
    
    1. Where the petition in an action is framed upon the theory that an alleged accident caused an injury, and the proof offered by the plaintiff' corresponds to the allegations of the petition and is repugnant to the theory of an aggravation of an existing infirmity, the defendant is entitled to have the plaintiff confined in his recovery to the scope of his allegation and proof.
    2. Plaintiff sued in the court helow to recover the sum of $10,000 as damages on account of the defendant company’s refusal to pay him certain relief department benefits, to which he claimed to have become entitled by reason of an alleged accident, as a result of which, it was alleged, he had suffered a hernia or rupture, his testimony in substance being that the alleged accident caused the hernia, and that prior thereto he was physically sound and had no hernia or other disahility. The defendant, however, proved that the plaintiff had had the hernia for more than a year previous to the time of the alleged accident, whereupon plaintiff endeavored to show, by the testimony of other witnesses, that the hernia, before the a-ccident,. had been incomplete, while the accident had aggravated and caused to become complete the hernia which had formerly been incomplete.
    
      Held: That the issue as raised by the pleadings, was whether or not the accident caused the hernia, and'the defendant having proved that the plaintiff had the hernia previous to the time of the alleged accident, this fact constituted - a complete defense to the action, and the court should have charged the jury accordingly.
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
    Heard on error.
   The plaintiff below, George M. Boswell, sued to recover damages as for the breach of a contract with the Voluntary Relief Department to pay benefits for injury incurred in the service of the defendant company, plaintiff in error here.

He averred “that on the 7th day of May, 1896, he 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 charge the jury as follows :

‘1 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 29th 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 fiucl the fact to be that plaintiff had a hernia prior to the time of the accident complained of, and that 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 entitle! 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 particular 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 secundtim 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. Williamson v. Steel Spring Works, 73 Mich., 405.

Henderson, Livesay & Burr, for plaintiff in error.

J. V. Lee and Elmer E. Murphy, for defendant in error.

Consequences flowing from the act must be alleged if they do not naturally result therefrom. Stevenson v. Morris, 37 O. S., 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 Section 5294 of the Revised Statutes. Thatcher v. Heisey, 21 O. S., 668; Hill v. The Supervisor, etc., 10 O. S., 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.  