
    John S. Hoffman v. W. Y. M. Gordon & Bro
    1. A petition charging the defendant with a wrongful act, committed while he was in the employment of another, without alleging that the act was done within the scope of his employment, is not demurrable on the ground of respondeat superior.
    
    
      2. An answer denying that the defendant committed such act, and alleging that it was committed by a third person, is merely a denial, and requires no reply.
    3. The refusal of a new trial, where no reasons for the new trial are alleged in the motion therefor, can not be assigned for error. Westfall v. Dungan et ah, 14 Ohio St. Rep. 276, affirmed.
    4. The petition charged defendant with flooding the plaintiff’s cellar by obstructing the street, and the answer denied the charge. On the trial, evidence, admitted without objection, showed that the flooding was occasioned by defendant’s wrongful o%>ening of the side xoalh, making a channel through which the water was forced into the cellar by obstructions placed in the street by others. Held: That it was.not error for the court, although no amendment of the petition was asked or made, to find upon this evidence for the plaintiff, and to render judgment accordingly. Such proceeding is in conformity to sections 131,132 of the code.
    This is a petition in error to reverse the judgment of the district court of Hamilton county affirming a judgment of the common pleas.
    The action in the common pleas was brought by Gordon & Bro. against Hoffman, and two co-defendants, McCammon and McGrew. The petition in the common pleas alleges, that the’ three defendants were engaged in erecting a building for Me- > Cammon on a certain- street in Cincinnati, the said Hoffman being employed by McCammon, and said McGrew employed by Hoffman. It alleges that McCammon had taken out a “ permit ” for the building, and then proceeds as follows: “ That the defendants caused to be placed, or did personally place on the street, certain building materials in front -of said' building, in a position likely to produce damage in case of heavy rain; and that they also, in violation of said permit, dumped the earth taken from the foundation of said building in the street, and within a short distance of the curbstone; and in divers other ways violated the terms of said permit. That .rain took place, and the natural channels, the gutters leading past said building, were obstructed by said materials, so carelessly and improperly placed in the street, and the’ water flowed into the cellar of the plaintiffs. That said defendants wTere guilty of negligence of an inexcusable character. That they were by plaintiffs, or their agent, notified to clear out the gutter, and properly dispose of the materials, and utterly refused so to do.” By which, means the plaintiffs allege, the water was caused to flow into the cellar of the plaintiffs, to their damage.
    A general demurrer to this petition was filed by Hoffman, and overruled by the court.
    McGrew put in no answer, and the plaintiffs subsequently dismissed the case as to him.
    McCammon and Hoffman answered separately, each denying all the wrongful acts charged in the petition, and also denying the alleged relation of employer or employee, and asserting that Hoffman had the whole control for the building, except the brick work, which he had given by sub-contract to McGrew.
    The answer of Hoffman also averred that the obstructions complained of were the act of McGrew alone:
    There was no reply to these answers; and, when the case was called for trial, the counsel for Hoffman moved the court for judgment, on the alleged ground that' the plaintiffs were in default for reply to his answer; and the motion was overruled.
    The cause was then submitted to the court, and the court found McCammon not guilty, but Hoffman guilty, arid rendered judgment against him for the damages assessed.
    A motion for a new trial was made by Hoffman, and overruled by the court. But the motion sets forth no grounds or reasons upon which it is based.
    A bill of exceptions taken on the trial, sets out all the evidence, and shows the facts of the case substantially to have been as follows : McCammon gave the contract to build the entire house .to Hoffman, reserving no control over it; and Hoffman, by a sub-contract, gave McGrew the brick work of the house, reserving no right to control it. Hoffman, in excavating the .cellar, removed some of the brick from the sidewalk to make a way for hauling out the dirt, and placed a small quantity of sand taken from the cellar in the street, near the gutter, at the request of McGrew, to be used by McGrew in making mortar. McGrew piled up a load of brick,. partly on this sand, and piled them in such form — without “ tying ” them — that a heavy rain flooding the street washed the sand from under the brick, caused them to fall over into the gutter, thereby damming the water in the gutter, and caus ing it to force a channel through the roadway across the sidewalk into the cellar of the building. _ From this cellar the water found its way into the cellar of the plaintiffs, wher© it damaged their goods. At the time of the rain and flood, Hoffman had filled in, and replaced the dirt on the roadway across the sidewalk, to the proper hight to receive the pavement so removed, but had not replaced the pavement.
    The plaintiff in error assigns as grounds for reversing the judgment of the common pleas :
    1. The overruling of the demurrer.
    2. The refusal of his motion for judgment upon the pleadings.
    3. The refusal of a new trial.
    4. That the court should have rendered judgment for him, and not for plaintiffs.
    
      William M. Ramsey, for plaintiff in error.
    
      Stephenson $ Noyes, for defendants in error.
   Welch J.

1. The first question is upon the sufficiency of the original petition. Counsel for plaintiff in error insist that it is bad as to him, because it shows that whatever he did was done by him as the employee of McCammon, and that the rule respondeat superior applies. It will be seen, however, that it is not alleged that the wrongful acts complained of were done by Hoffman and McGrew, as such employees, or under the direction or control of McCammon, or in the prosecution of said business or employment. The petition, it is true, states that the relation of employer and employees existed between the parties: but this allegation is mere surplusage. There is a good petition without it. For the petition, after stating this relation, proceeds, in general and independent terms, to charge, that “ the defendants caused the materials,” etc., and “ wrongfully obstructed the gutter,” etc. There is nothing in the petition, to show that the wrongful acts complained of were within the scope of Hoffman’s alleged employment. His demurrer was, therefore, properly overruled.

2. Did the court err in refusing the motion of Hoffman for judgment upon the pleadings ? In other words, was the plaintiff in default for want of a reply to Hoffman’s answer?

The petition charges Hoffman with wrongfully obstructing the street, to the plaintiff’s injury. Hoffman answers, that he is not guilty — and that MeGrew alone is guilty. Is this latter branch of his answer a plea in confession and avoidance ? Is it new matter in bar, requiring a reply ? The question need hardly be seriously considered. The answer requires no reply for at least two good reasons: 1. It is a mere special denial. It is a denial, because to say MeGrew alone is guilty, is to say that Hoffman is not guilty. 2. The new matter is immaterial. Eor if Hoffman is not guilty, as he answers that he is not, that is the end of his case, and it is useless to inquire who else is guilty.

8. The third ground relied upon is the refusal of a new trial.

The trouble here is, that the plaintiff has not brought his case within the provisions of the statute. It is only where the motion for a new trial is made upon the ground that the verdict or finding is “ against the law or the evidence,” that the refusal of a new trial can be assigned as error. S. & 0. Stat. 1155, sec. 693. This is the plain reading of the statute, and the point was expressly decided in Westfall v. Dungan et al., 14 Ohio St. Rep. 213. The plaintiff having assigned no reasons or grounds in his motion, the question whether he was entitled to such new trial can not now be considered, and we are bound to presume the truth of the findings of the court, so far as there was evidence in the case tending to prove them.

4. The remaining ground of error assigned is that the court-rendered judgment against Hoffman, when it should have been rendered in his favor.

The evidence in the case tends to show nothing upon which a finding and judgment against Hoffman can be based, except his act of opening the sidewalk, That act is not directly charged in the petition. Thé petition charges obstruction only. Can the judgment against Hoffman be supported on the ground that the evidence tends to show that his act of opening the sidewalk was, in whole or in part, the proximate cause of the mischief?

But for the obstruction of the gutter by the brick, the opening in the sidewalk would have worked no mischief; and but for the opening in the sidewalk, the water, though dammed in the gutter, would have sought some other outlet, and done no damage. The injury was occasioned by the concurrent acts of opening the sidewalk and obstructing the gutter. We think the evidence clearly tends to show this; and that it as clearly tends to show, that no other act of Hoffman, than the act of opening the sidewalk, could have been the proximate cause of the mischief, and if the evidence shows that this act of Hoffman was, in whole or in part, the cause of the injury, there was surely evidence before the court tending to show that it was a wrongful or a careless act.

It is true the petition charges, in general terms, that the defendants “were guilty of negligence,” and that “in other respects they violated their permit.” But it does not tell us what the “permit” was, how it was violated, or of what other carelessness the defendants were guilty. There is no language in the petition that technically, or even substantially, describes this act of opening the sidewalk. The question is, then, did the court err in admitting and considering this evidence, and in basing their finding and judgment upon it ?

Evidence of the act of opening the pavement was offered by both parties, and without objection. Indeed, it consisted mainly of the testimony of Hoffman himself. It was perhaps impracticable -to prove the case made in the petition, without also showing this fact. Being thus in, as a part of the history of the case and description of the premises, and no motion made to exclude it, or to amend the pleadings, can it now be made tbe legal basis to sustain tbe finding and judgment of the co'urt ? If if can not, the judgment ought' to be reversed.

The code provides :'

“ Sec. 131. No variance between the allegation in a pleading and the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that the party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as may be just.”

Section 132 provides, that the court may, in such case, “ direct the fact to be found, according to the evidence.”

Section 133 provides, that the above provisions do not apply to cases where the proof fails, not merely in “ some particular or particulars,” but in its “ general scope and meaning.” ■ •

Section 114 provides that the allegations of pleadings shall be liberally construed, with a view to substantial justice between the parties.”

The case is within the spirit and meaning of sections 131 and 132 of the code. It is a case of “ variance” such as is ■ contemplated in these sections, and not a case of “ failure of proof,” within the meaning of section 133. The “real controversy” was, whether the defendant had wrongfully caused the water to flow into the plaintiff’s cellar. The petition alleges that he had, and the answer denies the charge. True, the petition avers the means by which this was done, to have been the obstruction of the street by the defendant; and the evidence shows that it was effected by removing the pavement, and thereby rendering an obstruction of the street effectual for mischief. Strictly, this was not an obstruction; but without it the actual obstruction would have been harmless. A “liberal” reading of the pleadings, giving to their language its ordinary and popular sense, as the code seems to require, would be that they intended to put in issue the general fact, of wrongfully causing the water to flow into the cellar. The parties must have so understood them; for they came to the trial prepared with proof to that extent, and mutually introduced it without objection from either. The variation between the pleading and the proof is merely technical. Indeed it does not seem any greater* variation than was allowed, before the code, in Hogg v. Zanesville Canal Manufacturing Company, 5 Ohio Rep. 410. The fact that no objection was made to the introduction of the testimony, sufficiently' distinguishes the present case from that of Hill v. The Supervisor, etc., 10 Ohio St. Rep. 621; but the cases are also widely different as to the nature of the variations.

The evident object of the code is to vest in the court a discretion, where it can be done without surprise or injury, to try the case upon the evidence, outside of the pleadings, and if objection be made, to allow the pleadings to be conformed to the evidence, at once and without terms. When a trial is so had, without objection, we are only carrying out the spirit of the code, by refusing to reverse the proceedings on account of the variance. Had this evidence been objected to when offered, it is quite apparent that the plaintiff would have asked and obtained unconditional leave to amend. To allow the defendant, after he has suffered the evidence to go to the jury without objection, to reverse the judgment on that account, would be manifestly unjust to the other party.

The judgment of the district court is affirmed.

Biunkerhoee, C.J., and Scott and White, JJ., concurred.  