Chicago, Terre Haute & Southeastern Railway Co. v. Collins

ON PETITION FOR REHEARING. The appellant still insists that "the plaintiff must recover on the theory of her complaint or not at all." That statement comes to this court with such frequency that it merits further consideration.

For many years, it has been regarded as a fundamental requirement that the final record of every action which results in a recovery by the plaintiff shall disclose consistency with respect to three things, viz.: the complaint, the verdict, and the judgment. These three elements must be harmonious, accordant, congruous, compatible. 15 R.C.L. 604; 33 C.J. 1139, 1169. The reason for that requirement is not difficult to find; but it need not be discussed now. Indeed it is of little significance in view of our form of verdict and judgment. See 33 C.J. 1153. The fact must not be overlooked, however, that the Civil Code contains certain provisions which have a direct bearing on the subject.

The Code was formulated and adopted in obedience to the mandate of the Constitution (Art. 7, § 20, Constitution). One of the purposes of the Code is to ameliorate some of the rigors of the common law, by simplifying the practice, to the end that citizens may be relieved of some of the hazards and hardships of litigation. So long as the Code stands as the law of the state, its provisions should be heeded.

The Code says nothing about the "theory" of a complaint. The simple requirements of the Code are the following:

"The complaint shall contain * * * a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.

"Where the complaint contains more than one cause of action, each shall be distinctly stated in a separate paragraph, and numbered." § 343 Burns 1914, § 338 R.S. 1881.

The presumption is that when the pleader prepares a complaint, he will state the facts as he understands them. But he may be mistaken. He may have been misinformed. For various 12. reasons, his statement of the facts may not be entirely correct. But even if the facts set forth in the complaint are correct in every particular, yet, for the purposes of the litigation, they must necessarily be regarded as merely postulated facts until they have been established in one of the ways provided by the law for that purpose. They cannot become established facts until they have been confessed by the adverse party or subjected to the test of trial. A trial is an investigation under the direction and control of the state for the purpose of discovering the truth and establishing the facts upon which the sentence of the law may be pronounced. § 542 Burns 1914, Acts 1881 p. 240; Ellenberg v. Southern R. Co. (1908),5 Ga. App. 389, 63 S.E. 240. See Schwindt v. Graff (1924), 142 N.E. (Ohio) 736, 739.

It frequently occurs that the facts established by trial are at variance with the postulated facts averred in the complaint. Now, where the facts established by trial show clearly that the 13. plaintiff is entitled to recover, although the facts thus established are at variance with the postulated facts stated in the complaint, and the trial has been full and fair, what ought to be done? Should the litigants be put to the trouble and expense of another trial merely for the purpose of bringing the complaint into accord with the facts established by the verdict? To do that would be to sacrifice the substantial rights of citizens to the art of pleading. The sensible thing to do in such cases is to require the plaintiff to restate the facts in an amended complaint in order that the facts therein averred may conform to the facts established by trial. The Code contains a provision precisely for that purpose:

"After trial and before final judgment, the court may, in its discretion and upon such terms as may be deemed proper for the furtherance of justice, order that any pleading be amended by correcting any mistake in name, description, legal effect, or in any other respect; or by inserting, striking out, or modifying any material allegation, in order that the pleadings may conform to the facts proved, where the amendment will not deprive a party of any substantial right." § 405 Burns' Supp. 1921, Acts 1921 p. 277.

In every case of variance the trial court should require the plaintiff to file an amended complaint before rendering judgment in his favor. But if that important duty should be 14. neglected, then by virtue of another provision of the Code the appellate tribunal will treat the complaint as having been amended. § 700 Burns 1914, § 658 R.S. 1881.

It is essential to a full and fair determination of appellant's contention that we shall ascertain, if possible, what is meant by the "theory" of a complaint.

In the case of Western Union Tel. Co. v. Reed (1884),96 Ind. 195, the court had to deal with a complaint which was somewhat distressing. Evidently that complaint was drafted by a careless or an incompetent pleader. The court was perplexed. It had difficulty in determining whether the plaintiff was seeking to recover a statutory penalty or special damages resulting from negligence. The appellee had filed no brief. The court decided that the complaint did not state a cause of action founded on the statute authorizing the recovery of a penalty in certain cases, nor did it state a cause of action founded on common-law negligence. In other words, the court held that the complaint did not state a cause of action of any kind. On petition for a rehearing, the appellee filed a brief in which he contended that the complaint stated a cause of action founded on negligence. The learned judge who wrote the opinion on the petition for a rehearing, emphasized the idea that it is necessary that every pleading shall conform to some definite "theory." (He had expressed the same idea in several earlier cases.) A patient consideration of what he said on that occasion, taking into account the relation of his statements to the original opinion, has led to the conclusion that he did not mean to inject into the subject of pleading anything new or mysterious. Nevertheless, the Reed case has been used in many subsequent cases as authority for a great variety of statements concerning the "theory" of a pleading. 1 Watson's Revision Works Practice § 330.

It is desirable that in every complaint the facts shall be stated with precision and with due regard for logical sequence. It is desirable that every complaint shall be skillfully 15. drafted, so that the intent and purpose of the pleader will be spontaneously revealed, or at least may be readily ascertained. But that cannot be exactly what is meant by the "theory" of the complaint; for perfection in pleading is not essential. However awkwardly drafted, however inferior in point of rhetoric, if a complaint states facts sufficient to constitute a cause of action, it may not be held utterly worthless.

An attentive study of a large number of cases has led to the conviction that wherever it has been said that a complaint must proceed upon a definite "theory," which is to be determined from the general scope and tenor 16. of the complaint, nothing more or less is meant than the complaint must reveal the character of the action — the nature of the action. (See Supreme Court Rule 22, clause 1.) More definitely stated: a complaint must be so drafted as that, from its general scope and tenor, the court may determine whether it states a cause of action founded on negligence or fraud; whether it is an action for replevin or ejectment; whether it is an action to foreclose a mortgage or to quiet title; or whether it is an action of some other kind. In yet other words: a complaint must be so drafted that the court may see to what class of actions the cause of action therein stated belongs, and may know what branch of the law is applicable. See Mescall v. Tuley (1883), 91 Ind. 96; Fedder v. Field (1889), 117 Ind. 386;Monnett v. Turpie (1892), 132 Ind. 482; Mark v.North, Admr. (1900), 155 Ind. 575.

In the case at bar, the "theory" of the complaint is negligence; and the three essential points of the record, viz.: the complaint, the verdict, and the judgment, are in perfect alignment insofar as that "theory" is concerned. If it may be said that there is a variance between the averment and the proof with respect to a particular fact, the complaint in that regard is deemed to have been amended.

Is "theory" an apt word to denote the idea intended? Are the statements concerning the "theory" of a pleading helpful or harmful in the administration of justice? Deference requires that we withhold our answer. It should be noted, however, that the statement that every pleading must proceed upon a definite theory, seems to be peculiar to this jurisdiction. 21 R.C.L. 455; 31 Cyc 84.

The original opinion has been slightly modified, and the petition for a rehearing is denied.