
    Bieri, Respondent, vs. Fonger, Appellant.
    
      March 31—April 20, 1909.
    
    
      Trespass: Possession 6y wife: Entering dwelling house: Pleadingr Sufficiency of complaint: Amendment to conform to proof: Presumption of amendment ow appeal.
    
    1. The entry hy a person into the home of husband and wife for an unlawful purpose without the wife’s consent, she being by reason of the absence of her husband exclusively in possession pf the premises, is a trespass to realty — a violation of the wife’s-possession;
    
      ( 2. If facts stated in a complaint constitute a good cause of action, though not the one the pleader intended, the pleading is good as against a general demurrer.
    3. In testing a complaint for sufficiency the question is not whether it states the cause of action the pleader had in mind, or states the facts essential to a cause of action with technical accuracy and certainty, but is whether, giving the pleading the benefit of every reasonable inference, it expressly or by such inference, or both, states a good cause of action.
    4. If a good cause of action is established on the trial and all controversies in reference to the matter are fully tried without objection, and such cause is within the jurisdiction of the court and might have been but was not fully pleaded, or was not the particular cause of action the pleader had in mind at the outset, though the facts are fairly stated, the complaint may be amended to conform to the proof, either before or after verdict, saving the substantial rights of the adverse party.
    5. In such situation, if necessary to sustain the judgment, the complaint will, on appeal, be deemed amended according to the judgment.
    6. Where a complaint states a cause of action for an assault and battery, and in addition states, defectively, a cause of action for trespass to realty but in a manner indicating that a cause of action of that character was in the pleader’s, mind, the complaint is good on demurrer because of the facts stated constituting the cause of action for assault and battery.
    Appeal from a judgment of the superior court of Douglas county: Charles Smith, Judge.
    
      Affirmed.
    
    Action to recover on facts stated, as follows:
    First. Plaintiff bas been, for nine years, a married woman, living witb her husband. /
    Second. August 2, 1906, defendant “unlawfully and wrongfully went upon the premises occupied by plaintiff, and then, and there, unlawfully and wrongfully, solicited criminal conversation with plaintiff, and then and there, unlawfully and wrongfully, assaulted and beat her, whereby the plaintiff was put in great fear and caused to suffer great pain, suffering, and torture of body and mind; ” to her damage in the sum of $5,000.
    
      The answer pnt all material allegations of the complaint in issue.
    There was evidence tending to prove that, at the time alleged, plaintiff was a married woman living with her husband,_ who was temporarily away from home; that defendant entered upon the premises occupied by plaintiff and her husband for the unlawful purpose of soliciting and obtaining carnal knowledge of the body of plaintiff, and, to that end, that he made indecent proposals to her, pressed her to drink whisky with him, and laid violent hands upon her for his unlawful purpose, and desisted only after having been several times struck by the plaintiff with a stove poker; that she was pregnant at the time and suffered much disturbance of mind for a long time after the event as a result thereof.
    ’ The cause was submitted to the jury as an action for assault and battery, resulting in a verdict in plaintiff’s favor for $900. Several days after the close of the trial, but during the trial term, defendant, by his counsel, excepted to that portion of the charge submitting the case for damages in favor of plaintiff in case they found the assault alleged was committed, without reference to whether the alleged trespass to the premises occupied by her occurred or not.
    ■ A motion for a new trial was made based, among other things, on the exception aforesaid and that the verdict was excessive. Judgment was rendered for plaintiff upon the verdict and defendant’s motion denied.
    For the appellant there were briefs by Luse, Powell & Luse, and oral argument by L. K. Luse.
    
    
      W. P. Crawford, for the respondent.
   Marshall, J.

The claim of appellant that the cause of action set forth in the complaint was for trespass to real estate; that the allegations to the effect that appellant was guilty of physically violating the person of respondent, laying himself liable to a civil action for assault and battery, were stated as aggravating characteristics of such trespass, and that there was no proof of the latter trespass, hence was a failure of proof entitling appellant to a dismissal of the ■case, — cannot be approved for the following two reasons:

Conceding for the moment that the pleader purposed declaring in trespass to realty, the proof was undisputed that, if the assault and battery alleged to have occurred happened, there was a violation of respondent’s possession of the premises when the deed was perpetrated. The situation is thus ruled by Ford v. Schliessman, 107 Wis. 479, 83 N. W. 761, where it was held, in effect, that entry by a person to the home •of husband and wife for an unlawful purpose without her consent, she being by reason of absence of her husband exclusively in possession of the premises, is a trespass to realty, a violation of the wife’s possession.

In view of the foregoing the finding of the jury that re■spondent told the truth as to appellant’s conduct, in effect, ■found that he committed the trespass which is now claimed was the real gravamen of the cause of action set forth in the complaint.

Aside from the foregoing it is considered respondent made •out a cause of action disclosed by the complaint. , It is npt the law, under our liberal rules of pleading and the statutory rule that the court will, “in every stage of an action, disregard any error or defect in the pleadings or proceedings which «hall not affect the substantial rights of the adverse party; .and no judgment shall be reversed or affected by reason of such error or defect,” that, in all circumstances, a recovery consistent with the evidence and facts pleaded, but not with the cause of action the pleader had in mind in drafting his complaint, can be successfully challenged after verdict. If facts are stated constituting a good cause of action, though not the one the pleader intended, th¿ pleading is good as .against a general, demurrer. Morse v. Gilman, 16 Wis. 504; Swift v. James, 50 Wis. 540, 7 N. W. 656; Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Franey v. Warner, 96 Wis. 222, 227, 71 N. W. 81; Emerson v. Nash, 124 Wis. 369, 102 N. W. 921. Under these authorities, and many more that might be referred to, in testing a complaint for sufficiency the question is not whether it states the cause of action the pleader had in mind, or states the facts essential to a cause of aejtion with technical accuracy and certainty, but is, as said in the initial case, whether, giving the pleading the benefit of every reasonable inference, it expressly or by such inference, or both, states a good cause of action.

In harmony with the foregoing rule, if a good cause of action is established upon a trial and all controversies in reference to the matter are fully tried without objection and such cause is within the jurisdiction of the court and might-have been but was not fully pleaded or was not the particular cause of action the pleader had in mind at the outset, though the facts are fairly stated, the complaint may be amended to-correspond with the cause proved either before or after verdict, saving the substantial rights of the adverse party or, if' need be to sustain the judgment, it will, on appeal, be deemed amended in accordance with the judgment. Hopkins v. C., M. & St. P. R. Co. 128 Wis. 403, 107 N. W. 330; Kleimenhagen v. Dixon, 122 Wis. 526, 100 N. W. 826; McKinney v. Jones, 55 Wis. 39, 11 N. W. 606, 12 N. W. 381. This has been declared so many times that it has become quite elementary. The fact is that there is little room, if any, for mere technicalities in our system of jurisprudence. It deals with rights and remedies for the sole purpose of the attainment of justice, not for the purpose of dignifying into a controlling feature any of the numerous little inconsequential-defects that may arise in the course of litigation, not seasonably mentioned by the adverse party, or, if mentioned, not affecting him substantially in any aspect of the matter. Here all facts were stated essential to a cause of action for damages for assault and battery. If the pleader had, in addition, stated, 'defectively, a cause of action for trespass to real estate but in a manner indicating that a cause of action of that character was in mind, the complaint would have been held good on demurrer because of facts stated constituting tbe cause of' action for assault andJ battery, as was the case in Swift v. James, supra.

This is very unlike Joseph Dessert L. Co. v. Wadleigh, 103 Wis. 318, 79 N. W. 237, where tbe sufficiency of tbe proof to-make out tbe cause of action wbicb plaintiff relied on was raised by a motion for a nonsuit and no request was made for-leave to amend tbe complaint according to tbe proof of facts stated therein constituting a different cause of action than tbe one tbe pleader bad in mind.

In tbe light of tbe very liberal rules for testing tbe sufficiency of pleadings and proceedings wbicb have been declared in recent years and tbe progressive tendency to broaden the-judicial vision as to the scope of sec. 2829, Stats. (1898),. aforesaid, tbe criticism in Joseph Dessert L. Co. v. Wadleigh, supra, would hardly be made today. Tbe general spirit of' tbe decision as regards essentiality of technical accuracy in pleadings and necessity for a party to stand or fall, under all circumstances, by tbe particular cause of action be intended to plead, is not in strict harmony with tbe later-day expressions and decisions. This does not impair tbe decision off that case but only softens somewhat tbe logic of tbe discussion. If there, upon tbe motion for a nonsuit, tbe complaint bad been amended in accordance with tbe evidence, savingtbe defendant from prejudice, if necessary, by proper terms, tbe ruling might' have been sustained, or bad tbe sufficiency of tbe case made by tbe evidence not been challenged till after; verdict, as in this case, tbe variance would,'doubtless, have been regarded as nonprejudicial, if tbe issues underlying tbe recovery were fully tried, or there was full opportunity for tbe adverse party to try them.

Tbe claim made that tbe damages found by tbe jury are excessive has been examined without discovering any warrant for disturbing tbe result. , '

By the Court. — Judgment affirmed;  