Mercier v. Travelers' Ins. Co. of Hartford, Conn

• Decision Date: 01 March 1901
• Citation: 64 P. 158,24 Wash. 147
• Court: Washington Supreme Court
• Parties: MERCIER v. TRAVELERS' INS. CO. OF HARTFORD, CONN.

64 P. 158

24 Wash. 147

MERCIER v. TRAVELERS' INS. CO. OF HARTFORD, CONN.

Supreme Court of Washington

March 1, 1901

Appeal from superior court, Spokane county; William E. Richardson Judge.

Action by Minnie Mercier against the Travelers' Insurance Company of Hartford, Conn. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Graves & Graves, for appellant.

John H Roche, for respondent.

DUNBAR J.

This was an action brought by the respondent, the wife of one Arthur Mercier, on an accident insurance policy. The part of the complaint material for the purposes of this opinion is as follows: 'That the said Arthur Mercier accidentally fell and injured his left hand between the fingers thereof, and injured and bruised his left side directly over the heart from which injuries he never recovered, and died on the 29th day of January, 1899, from the direct result of said injuries, independent of all other causes and that the receiving of said injuries was wholly and entirely accidental on the part of the said Arthur Mercier, deceased.' The material part of the answer was as follows: 'That the death of said Arthur Mercier was not occasioned by accident or accidental means, or by any other means within the terms of the contract of insurance set forth in said amended complaint, and in this answer as 'Exhibit B,' but that his death was occasioned solely and entirely by disease, and such diseased condition of his body was not occasioned by any accident received by him within the terms of said contract of insurance.' Before the trial the defendant demanded of plaintiff a bill of particulars in answer to the following questions: '(1) State fully and definitely in what manner and through what agencies the Arthur Mercier referred to in the complaint fell and received the injuries referred to in paragraph 4 of said complaint. (2) State fully and definitely whether the death of the said Arthur Mercier was occasioned by the injury to his hand, or by the injury to his side,--both of which injuries are referred to in paragraph 4 of said complaint. (3) State fully and definitely what the character of injuries were to the hand of the said Arthur Mercier which are referred to in paragraph 4 of said complaint. (4) State fully and definitely what the character of the injuries were to the side of said Arthur Mercier, and how they caused his death, which are referred to in paragraph 4 of said complaint.' Plaintiff answered the bill as follows: 'Answer to interrogatory No. 1: The said Arthur Mercier accidentally stumbled and fell, and said fall was not caused by any other means or agencies known to plaintiff. Answer to interrogatory No. 2: The death of the said Arthur Mercier was caused by the injuries to his side; the injury to his hand slightly, if any, contributing thereto. Answer to interrogatory No. 3: A deep cut between the third and fourth fingers of the left hand. Answer to interrogatory No. 4: Bruised and injured upon the side directly over the heart, causing a malignant growth of spleen and fatty degeneration of the heart.' The following special interrogatories were propounded to the jury and answered as follows: '(1) Did Arthur Mercier die from the diseased condition of the heart? Answer. Yes. (2) Did the diseased condition of his liver contribute to causing his death? Answer. No. (3) Was the diseased condition of his liver caused by any accidental injury received by him? Answer. No. (4) Was Arthur Mercier at the time of his death afflicted with malignant growth of the spleen or fatty degeneration of the heart? Answer. No.' There was a general verdict for the plaintiff. Dr. Burns, who was the physician attending upon the deceased at the time of his death, and who made a post mortem examination, testified that there was no malignant growth of the spleen or fatty degeneration of the heart, upon which the defendant made a motion to strike the testimony of the witness, for the reason that it did not correspond with the allegations of the complaint. The motion was overruled. Upon the conclusion of the trial the objection was raised by the appellant that the special findings of the jury were at variance with the general verdict and at variance with the allegations of the complaint. This contention was not sustained by the court. Judgment was rendered, and an appeal is brought here, alleging the action of the court in that respect as error.

It is insisted by the appellant that, when the general verdict and special findings conflict, the special findings must control that the bill of particulars was descriptive, and must be proven as alleged; that by reason of the allegation in the bill of particulars that the deceased was at the time of his death afflicted with malignant growth of the spleen or fatty degeneration of the heart the defense was misled as to the character of defense which it should interpose or of the charges which it should meet; that under the rule laid down in Greenl. Ev. (14th Ed.) § 58, the allegations in the bill of particulars here are of essential description and must be proved with strictness. Many cases are cited in support of appellant's contention in this regard, the first of which is Railway Co. v. Friedman (Ill.) 30 N.E. 353, where, in an action for personal injuries, the declaration alleges that the plaintiff was a passenger on defendant's train between certain stations, and the proof showed that the plaintiff was a passenger between two other stations; the termini alleged being the intermediate stations, between which the accident happened. The variance between the declaration and the proof was held fatal to recovery. In that case it was averred that on a certain date the plaintiff became and was a passenger on a certain train of the defendant, and was on the said railroad to be carried, and was accordingly being carried, on the said train from Kirksville to Glenwood Junction; and the further fact was set forth that between Kirksville and Glenwood Junction, through the negligence of the defendant, the accident happened which resulted in plaintiff's injury. The proof showed that the plaintiff took the car and became a passenger on such at Moberly, some distance south of Kirksville, and that his destination was Ottumwa, several miles north of Glenwood Junction, so that it was between Moberly and Ottumwa that the accident happened. This case might possibly be distinguished from the case at bar from the fact that the court held that the contract set out in the declaration had not been proven. The contract alleged was carriage from Kirksville to Glenwood Junction, when the actual contract, as shown by the proof, was from Moberly to Ottumwa. Still, the whole case shows conclusively from the record that the defense in that case was in no way misled by the variance between the proof and the allegation, and we think the court laid down a rule which is not in consonance with law or reason. Glenwood Junction and Kirksville were both on the line between Ottumwa and Moberly, and, as the greater includes the less, an allegation that the accident happened between Glenwood Junction and Kirksville was notice to the railroad that the accident happened between Moberly and Ottumwa. We are not inclined to follow the decision in this case. The decision was intended to have been based upon well-known principles, viz. that a departure from the substance of an issue which is made by the complaint and the evidence adduced is fatal and constitutes a variance, and that matters of material description must be proven as alleged. But these rules are announced, and the principles which they enunciate are applied in the interest of justice, and not for the purpose of defeating the ends of justice, as we think their application in the case quoted did. In Day v. Webb, 28 Conn. 140, the question related entirely to the sufficiency of the verdict, each party claiming that the court could, with suitable changes, work the findings of the jury into form so that a judgment might be rendered in his favor. It was there announced that if the jury returned a verdict varying materially from the issue, either omitting to find all the facts embraced in it, or, disregarding the issue, find other and different facts not in the issue, the verdict would be insufficient and the judgment would be arrested. We do not think there is anything in this case that militates against the judgment in the case at bar. Ebsery v. Railroad Co. (Ill.) 45 N.E. 1017, is a case for personal injuries, where the plaintiff alleged that he was knocked off of defendant's road, and that, when said car was stopped and was not moving, the defendants negligently caused the grip car and trailers to be suddenly and violently started and moved onward, running over the plaintiff and injuring him as...