Smith v. THOMAS , 126 Ind. App. 59 ( 1955 )

Crumpacker, J.,

Dissents. — The appellees, Thomas and Thomas, sued the appellant, Smith, on the theory that a truck belonging to them was damaged in a collision with an automobile belonging to the appellant and negligently operated by one William McCurdy, the appellant’s agent then acting within the scope of his authority. The court found against said appellees on the issue of agency but entered a judgment in their favor on the theory that the appellant was negligent in knowingly placing a dangerous instrumentality in the hands and control of an incompetent operator and thereby became responsible for his negligence. Thus the judgment involved is entirely outside the issues joined by the pleadings.

We are confronted with a situation where the facts alleged in the complaint and the proof differ in their general scope, purpose and meaning. This results, according to the pertinent statute, Sec. 2-1065, Burns’ 1946 Replacement, and the decisions of our courts construing it, in a failure of proof which is fatal, and not a mere variance which entitled the appellees to amend their complaint'. Chicago, etc., R. Co. v. Hostetter (1908), 171 Ind. 465, 481, 84 N. E. 534; Chicago, etc., R. Co. v. Collins (1924), 82 Ind. App. 41, 50, 142 N. E. 634, 143 N. E. 712; Flanagan, Wiltrout & Hamilton, Indiana Trial and" Appellate Practice, §2061, Comment 2, and cases cited.

In the case of a mere variance, entitling the pleader to amend, the cause of action remains the same as originally alleged but is not proven precisely as laid. Mount v. Board, etc. (1907), 168 Ind. 661, 667, 80 N. E. 629. If we treat the present complaint amended to fit the theory adopted by the court as the basis of its decision, we completely abandon the cause of action pleaded and sanction recovery on a theory wholly outside the issues and concerning which essential facts were not originally alleged. No principle of pleading and practice seems more firmly established in this state than that to the effect that parties must recover upon the allegations of the pleadings. “They must recover secundum allegata et probata, or not at all. This is the only reasonable rule under our practice. It would be folly to require the plaintiff to state his cause of action in his complaint and the defendant disclose his defense in the answer, if, on the trial, either or both might abandon such allegations and recover upon other facts which are substantially different from those alleged.” Lowe’s Revision of Works Indiana Practice, Vol. 3, §47.2.

The majority opinion rejects these principles of pleading and practice as inapplicable and affirms on the theory that the record shows that the case was tried below upon the “dangerous instrumentality” theory and that upon appeal the parties will be held thereto. In my opinion the record shows no such thing. At the close of the appellees’ case the appellant moved for a finding in his favor, contending there was no evidence tending to prove agency. Such motion does not indicate that the appellant had joined the appellees in submitting to the trial of an issue not pleaded. The motion was overruled by the court, however, because he thought he detected in the evidence some other theory upon which the appellant could be held. The trial proceeded and at its close the appellees made no effort to amend their complaint to state a cause of action on the “dangerous instrumentality” theory. This, it seems to me, indicates their conclusion that the entire record establishes agency and their willingness to stand on that issue.

The majority apparently concludes that because of the court’s remarks in ruling on the appellant’s motion for a finding and the appellant’s failure to object to certain evidence, recited in the opinion, he thereby forfeited his right to have the decision of the court adjudicate the issues pleaded. In that connection I quote from the opinion as follows: “Our examination of all the pleadings in the case, in connection with the evidence introduced thereunder, convinces us that the case was tried below on the theory that this evidence was within the issues tendered . . . .” The issue tendered was agency and if “this evidence” was competent to prove that issue I am at a loss to understand how the appellant could have waived anything by failing to object thereto or why such failure indicated his willingness to defend against a cause of action he was not brought into court to meet.

I would reverse the judgment and remand the cause for a new trial.

Note. — Reported in 130 N. E. 2d 85.