City of Joliet v. Johnson

• Decision Date: 21 December 1898
• Citation: 52 N.E. 498,177 Ill. 178
• Parties: CITY OF JOLIET v. JOHNSON.
• Court: Illinois Supreme Court

177 Ill. 178

52 N.E. 498

CITY OF JOLIET

v.JOHNSON.

Supreme Court of Illinois.

Dec. 21, 1898.

Appeal from appellate court, Second district.

Action by Margareth Johnson against the city of Joliet. From a judgment of the appellate court (71 Ill. App. 423) affirming a judgment for complainant, defendant appeals. Affirmed.

This is an action on the case for the recovery of damages for injuries claimed to have been sustained by the appellee in consequence of a fall on a defective sidewalk in the city of Joliet on September 29, 1894. In the trial court the appellee recovered a verdict for $1,500, upon which, after overruling a motion for new trial, the court rendered judgment. An appeal was taken from the judgment so rendered to the appellate court, where the judgment was affirmed. The present appeal is prosecuted from such judgment of affirmance.

Coll McNaughton, for appellant.

E. Meers and J. W. Downey, for appellee.

MAGRUDER, J.

The reversal of the judgment in this case is asked upon the ground that there is a variance between the allegations in the declaration and the proof introduced by the appellee thereunder. The variance complained of is alleged to exist both as to the allegations setting up the cause of the injury and as to those setting up the character of the injury. The alleged variance between the statement of the cause of the injury and the proof in relation to the same is based upon the following allegation in the declaration: ‘The said defendant * * * wrongfully and negligently suffered the same [sidewalk] to be and remain in bad and unsafe repair and condition, and divers of the planks wherewith the sidewalk was laid to be and remain broken and unfastened, and divers of the sills or stringers upon which the planks of said sidewalk were laid to become rotten and decayed,’ etc. It is said that no proof was introduced to show that the planks of the sidewalk, or any of them, were broken. The allegation is not only that the planks were broken, but that they were unfastened, and also that the sills upon which they were laid had been rotten and decayed. There is proof tending to show that some of the boards were unfastened and were rotten, and that the tripping which resulted in the fall of appellee was due to the fact that one or more of the boards of the sidewalk were unfastened. This was sufficient to justify a submission of the case to the jury, even though there was no proof that any of the boards were broken. It is not necessary, in actions for torts, that every allegation of matters of substance should be strictly proved. The statement of the tort is divisible in its nature, and proof of part of the tort or injury is, in general, sufficient to support the declaration. ‘In torts, the plaintiff may prove a part of his charge, if the averment is divisible, and there be enough proof to support his case.’ City of Rock Island v. Cuinely, 126 Ill. 408, 18 N. E. 753. The alleged variance, so far as it has reference to the character of the injury, is based upon the allegation of the declaration, that ‘the right knee of the plaintiff was then and there dislocated,’ etc. It is said that there is no proof that the appellee's knee was dislocated by the accident. The proof does show that, in her fall, plaintiff's right knee impinged against a nail or spike protruding from one of the planks of the sidewalk; that the result was a jagged wound a little above the cap of the right knee, which caused a swelling around the mouth of the wound, and caused the limb to be swollen. The doctor, who dressed the wound an sewed it up, states that it was about an inch and a half long, and quite deep, and also says that: ‘There was crepitation of the bone covering of the knee, like if there would be sand under it, or ice under it. It would give with the finger, so that it was very susceptible and painful. I made examination as to the condition of the veins in that place. The varicose vein in that limb was very much enlarged. It would be an injury to her limb and to her health, because liable at any time to result in hemorrhage.’ We are unable to say that, under proof of the character thus indicated, there was not, in a certain sense, a dislocation of the knee. But, whether this was so or not, the declaration alleges that, as a result of her fall, the appellee ‘became sick, lame, disordered, and permanently injured.’ This allegation was broad enough to let in the proof, and was sustained by the proof. We concur with the appellate court when they say in their opinion, ‘The charges were broad enough to warrant, we think, the proof admitted.’

Independently, however, of any of the considerations already advanced, it is well settled that an objection alleging variance between the allegations and proofs must be made in the trial court, in order to afford an opportunity to the plaintiff to amend the declaration. Such objection should properly be made at the time the evidence is offered; otherwise it will be waived. Construction Co. v. Doley, 166 Ill. 31, 46 N. E. 750;Village of Chatsworth v. Rowe, 166 Ill. 114, 46 N. E. 763. We do not find in the record that any specific objection was made to any of the offered evidence of the plaintiff as being variant from the allegations of the declaration. Such an objection on the ground of...