Rosenwald v. Oregon City Transp. Co.
| Decision Date | 17 April 1917 |
| Parties | ROSENWALD v. OREGON CITY TRANSP. CO. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.
On rehearing.
For former opinion, see 163 P. 831.
Hall S. Lusk, of Portland (Carson & Brown, of Salem, and Dolph, Mallory, Simon & Gearin, of Portland, on the brief) for appellant. Abraham Nelson, of Portland (Westbrook & Westbrook, of Portland, on the brief), for respondent.
In an able argument the plaintiff urges that the opinion of the court in this case is erroneous because while it holds that the trial court gave to the jury an incorrect instruction, it further determines that this error is negligible for the reason that there was a fatal variance between plaintiff's pleadings and proof which would prevent a recovery in any event. It appears from the record that the complaint bases the right of recovery upon the common-law liability of the carrier while upon the trial plaintiff, in his direct case, offered proof of a written agreement expressly limiting such liability. The evidence of this written agreement is nowhere contradicted. It has been repeatedly held by us that where a plaintiff pleads a common-law liability, and proves a written contract expressly limiting such liability, he cannot recover. Normile v Or. Nav. Co., 41 Or. 177, 69 P. 928; Union St. Ry. Co. v. F. N. Bank, 42 Or. 606, 72 P. 586, 73 P. 341; McGregor v. O. R. & N. Co., 50 Or. 527, 93 P. 465, 14 L. R. A. (N. S.) 668; ey v. O. R. & N. Co.,
63 Or. 596, 128 P. 999. It follows that under the pleadings and proof the plaintiff was not entitled to recover in any event in this particular action. The defendant interposed a seasonable motion for a nonsuit, which, being resisted by plaintiff, was denied.
It is now contended that this court should remand the cause to the lower court, with permission to plaintiff to amend his pleadings. This position is based upon the provisions of section 97, L. O. L., in regard to variance between a pleading and the proof. This section of our Code must be read in connection with sections 98 and 99, in regard to which it may be said that the phrase "fatal variance" is practically synonymous with the "failure of proof" described in section 99, supra, and such a variance is termed "fatal" for the reason that it cannot be cured by amendment. Mr. Pomeroy, in his work on Code Remedies (4th Ed.) at section 447, classifies disagreements between pleadings and proofs as being of three grades: (1) An...
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