Thornton v. American Zinc, Lead & Smelting Co.

• Decision Date: 28 January 1914
• Citation: 178 Mo. App. 38,163 S.W. 293
• Court: Missouri Court of Appeals
• Parties: THORNTON v. AMERICAN ZINC, LEAD & SMELTING CO.

163 S.W. 293

178 Mo. App. 38

THORNTON v. AMERICAN ZINC, LEAD & SMELTING CO.

Springfield Court of Appeals. Missouri.

January 28, 1914.

MASTER AND SERVANT (§ 264)—ACTION FOR INJURY—IMMATERIAL VARIANCE.

There is not a failure of proof, which, as distinguished from variance, Rev. St. 1909, § 2021, declares to exist where the allegation of the cause of action, to which the proof as directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, but a mere variance, which under section 1846 is to be deemed immaterial, unless prejudice therefrom is by affidavit shown to the court, whereupon amendment may be ordered, where, in a servant's action for want of care for plaintiff's safety in defendant's construction of a track, the complaint alleged negligent failure to put enough ties under the rails and to nail the rails to the ties, by reason of which a load on the cars was liable to tilt and the track become lower "on one side," causing the load to fall off on the tracks, and the evidence was to that effect, except that track was caused to become lower at its end, and the load to fall off the end of the car.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Robert Thornton against the American Zinc, Lead & Smelting Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Thomas & Hackney, of Carthage, for appellant. W. R. Shuck, of Webb City, and R. M. Sheppard, of Joplin, for respondent.

STURGIS, J.

Suit for personal injuries received by a shoveler in a zinc mine near Webb City, Mo. Only one error is assigned on the record in this court, that plaintiff sued on one ground of negligence and was allowed to recover on another—a variance between the allegata and probata. For the purposes of this appeal, defendant admits plaintiff's injuries and that same were caused by its negligence in the manner proved but not in the manner alleged.

The plaintiff was injured by reason of a can of dirt and rock, which he was himself filling with his shovel, tipping over on him from a small car standing on a track made of light iron rails and ties laid on the floor of the mine and used to convey the dirt and rock from the drifts to the shaft. This track was both movable from place to place and was made longer from time to time to facilitate the work of getting the dirt and rock to the shaft. The plaintiff and other shovelers had nothing to do with the work of moving or extending this track; such work being intrusted to another workman. At the time of this accident, this track had recently been moved. The ordinary rails used thereon were 18 feet long, but, in order to get the end of the track, where stood the car and can to be filled, close to the dirt to be loaded, shorter length rails were used at the end. The end rails used at this time were about 6 feet long. Only one tie was placed under these short end rails, the joint being on the second tie. The short rails projected some 1½ to 2 feet beyond the last tie; that is, the one tie under these short end rails was a little beyond the middle of the same with the joint on the next tie. The track was somewhat downgrade near to and going towards the end, so that the car, with the can on it, had to be "scotched up" by placing something in front of the wheels to keep it from running off by its own weight. This accident was unquestionably caused by the car standing so near the end of the track as to cause the unsupported ends of the rails to go down, by reason of the increased weight of the can being filled, and the track to raise or buckle up at the joint. To quote from the witnesses: "The joint worked just like a hinge and raised the track five or six feet back. It buckled up." "That tie didn't get out of position, only (the rail) tipped like a scale beam would." "The car and can both dumped over those projecting points of the rails. The can had fallen straight in front of the track."

The question of plaintiff's contributory negligence in placing the car too far over the last tie with knowledge of the danger of so doing was resolved by the jury in plaintiff's favor.

Plaintiff's petition alleges several grounds of negligence, such as a soft and insecure roadbed, built on loose earth and rolling boulders, etc., but all were abandoned or taken from the jury, except this one: "That it negligently and carelessly failed to put under the rails of said track sufficient number of ties to properly balance and hold said track in place, and that it negligently and carelessly failed to properly nail said rails to a proper number of ties so that said track would be held in place, and that by reason thereof the cans upon the cars upon said track, when loaded, were liable to tilt, and said track become lower upon one side than upon the other, thereby causing the cans to fall off the cars upon said track." It will be seen that the petition does not point out the acts of negligence proved as definitely as it might or should. The specific negligence proved was a failure to put another tie at or near the end of the rails, and the result was the tilting of the car endwise rather than sidewise and by reason of the track going down at the end rather than "becoming lower upon one side than upon the other." The only instruction given for plaintiff followed almost the identical language of the petition above quoted, except that the jury were required to find that by reason of the insufficiency of the number of ties the cans on the cars "were liable to tilt and said track become lower at one place (one side in the petition) than at another."

Defendant cites and relies on a line of cases holding the well-known rule that plaintiff cannot sue on one cause of action and recover on another; or cannot allege one defect or kind of negligence and prove and recover on another; or cannot plead one act of negligence as the basis of his action and have a recovery on another and different act of negligence. Huss v. Bakery Co., 210 Mo. 44, 51, 108 S. W. 63; McClure v. Feldmann, 184 Mo. 710, 722, 84 S. W. 16; Chitty v. Railroad, 148 Mo. 64, 75, 49 S. W. 868; Bromley v. Lumber Co., 127 Mo. App. 151, 158, 104 S. W. 1134; Grisamore v. Railroad, 118 Mo. App. 387, 390, 94 S. W. 306.

It is by no means, however, every variance between the allegations of negligence and the proof of same that constitute reversible error. Much depends also on the manner in which the variance is taken advantage of in the trial court. In fact, a variance of the facts proved from those alleged, at least when no objection is made to the introduction of evidence on this ground, never amounts to reversible error unless the defendant files his affidavit of being misled, as provided by section 1846, R. S. 1909. It is somewhat different in case of a failure of proof under section 2021, R. S. 1909. White v. Gilleland, 93 Mo. App. 310, 314; Riefling v. Juede, 165 Mo. App. 216, 224, 147 S. W. 168; Donovan v. Brewing Co., 92 Mo. App. 341, 349; Mekos v. Fricke, 159 Mo. App. 631, 637, 139 S. W. 1181; Ingwerson v. Railroad, 205 Mo. 328, 337, 103 S. W. 1143. In Fisher v. Realty Co., 159 Mo. 562, 62 S. W. 443, it was said that, though a party cannot declare on one cause of action and recover on another, it is equally well settled that "timely and appropriate objections must be made to the introduction of the evidence offered on the distinct ground of variance between the allegata and probata, and that the objecting party must proceed in the manner provided by section 2096, Revised Statutes 1889, otherwise his objection will not be considered. * * * And the affidavit setting forth in what respect a party had been misled is the sole test of the materiality of a discrepancy between the allegata and probata. * * * If a party fails to avail himslf of section 2096, supra, in the trial court, it is too late to complain in the appellate court."

The difference between a "variance" and "failure of proof" is defined by statute (section 2021, supra) as follows: "Where the allegation of the cause of action or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof." It is stated in Nelson v. Railroad, 113 Mo. App. 702, 707, 88 S. W. 1119, 1120, as follows: "A plaintiff will not be permitted to declare upon one cause of action and recover upon another. When acts of negligence, fundamental to the right asserted, are specifically alleged, they must be proven as alleged. Waldhier v. Railroad, 71 Mo. 514; Ely v. Railroad, 77 Mo. 34; McManamee v. Railroad, 135 Mo. 440 . But this well-settled rule is in its application restricted by statute to predicative...