This action was instituted by Mattie E. Collins against the Chicago, Terre Haute and Southeastern Railway Company and also the Chicago, Milwaukee and St. Paul Railway Company, to recover damages for personal injuries alleged to have resulted from the negligence of the defendants. The following is the body of the complaint:
"That on or about the 23rd day of February, 1921, the defendant, Chicago, Terre Haute and Southeastern Railway Company, was, and for a long time prior thereto had been, engaged in operating a line of railway in and through the city of Seymour, Jackson county, Indiana, where it maintained a passenger station for the receipt and discharge of passengers who had occasion to use its line of railway; that its said passenger station was located north and east of another passenger station owned and used for the same purpose by the Baltimore and Ohio Railroad Company; that said defendant's passenger station was located east of Ewing Street in said city, which is a street leading northward from said Baltimore and Ohio passenger station; that prior to said date the defendant, Chicago, Terre Haute and Southeastern Railway Company, had wrongfully constructed one or more tracks across said Ewing Street, consisting of cross ties laid in the ground and `T' rails fastened thereon; that, although said defendant well knew that such Ewing street was in general use by passengers going to and coming from such Baltimore and Ohio Station, yet it negligently and carelessly so laid the rails in constructing its said tracks, contrary to law, across said street that they protruded one or more inches above the surrounding surface of said *Page 45 street, thereby making it very dangerous for persons to use said street in going to and from such Baltimore and Ohio passenger station, in that the protruding rails were likely to catch the feet of such passengers and trip them and cause them to fall down upon the hard surface of such street.
"That on said date, plaintiff had alighted from a train on said Baltimore and Ohio Railroad at its said station, and she then proceeded northward to her destination over and along Ewing Street, all of the time using due care for her own safety and protection; that plaintiff is fifty-six years of age and has good eyesight for a woman of her age; that at said time it was dark, or nearly so, and plaintiff was unable to see such protruding rail; that in passing over the same, the toe of her shoe caught upon such protruding rail and tripping her caused her to fall with great force and violence upon the hard surface of said street, breaking her left arm at the wrist, jarring her entire body, and scratching and bruising her arms, shoulders, face, chest and legs.
"That as a result of her said injuries she was confined to her home and bed for ____ weeks, and has suffered much pain and anguish; that her digestion has been impaired and her general health weakened and her nervous system has been broken down and injured; that she has not yet recovered the use of her arm and she will never be able to have good use thereof.
"That since said injuries were sustained as aforesaid, the defendant Chicago, Milwaukee and St. Paul Railway Company has succeeded to all the property and rights of its co-defendant herein and has assumed all its obligations and liabilities; that said last named defendant has become bound for the payment of any sums due plaintiff because of her said injuries.
"Wherefore, plaintiff demands judgment against the defendants in the sum of Ten Thousand Dollars." *Page 46
A demurrer to the complaint for want of facts was overruled. Each defendant filed answer in general denial. The action was dismissed as to the defendant Chicago, Milwaukee and St. Paul Railway Company. Trial resulted in a verdict for $2,000. With their verdict, the jurors returned answers to five interrogatories as follows:
"No. 1. Did the Southern Indiana Railway Company construct and lay the track across Ewing Street in the City of Seymour, of which plaintiff complains? Answer: Yes.
"No. 2. Did the Chicago, Terre Haute and Southeastern Railway Company construct or lay the track across Ewing Street in the City of Seymour of which plaintiff complains? Answer: No.
"No. 3. Was the railway track across Ewing Street in the City of Seymour of which plaintiff complains constructed and laid in pursuance of authority granted by an ordinance enacted by the Common Council of the City of Seymour on May 4, 1899? Answer: Yes.
"No. 4. Was the railway track across Ewing Street in the City of Seymour of which plaintiff complains constructed and laid in conformity to the grade of said Ewing Street as fixed and established by the Common Council of said City of Seymour? Answer: No.
"No. 5. Was the railway track across Ewing Street in the City of Seymour, Indiana, of which plaintiff complains, laid in such manner as would afford security for life and property at such crossing? Answer: No."
A motion for judgment on the interrogatories, notwithstanding the verdict, was overruled. A motion for a new trial was overruled. The errors assigned challenge the action of the court in overruling: (1) The demurrer; (2) the motion for judgment on the interrogatories; and (3) the motion for a new trial. Judgment on the verdict. *Page 47 The first error assigned has been expressly waived. Under the second assignment, the appellant contends that a recovery is absolutely inhibited by the old rule that a litigant will not be permitted to recover on any "theory" other than the one stated in his pleading. To sustain the contention, counsel proceed to put their own construction upon the complaint. They say that the plain "theory" of the complaint is that the track was originally constructed by the appellant; and that the original construction of the track was wrongful. They insist that the averment that the track was wrongfully constructed across Ewing street means that it was originally constructed without lawful authority; and that the complaint cannot be legitimately construed to charge negligence in the maintenance of the track, or in suffering the track to remain in the condition in which it was originally constructed.
The answers to the first and second interrogatories show that the track was originally constructed by the Southern Indiana Railway Company — a company not named in the complaint. The answer to the third interrogatory shows that the Southern Indiana Railway Company was duly authorized by the common council of the city of Seymour to construct its track across Ewing street.
From the foregoing premises, counsel conclude that while the complaint is on the dual "theory" that the original construction was negligent and unauthorized, the answers to the interrogatories conclusively show that the verdict rests on an entirely different "theory," viz.: negligence in the maintenance.
Is the question presented by this contention involved in the motion for judgment on the interrogatories? The *Page 48 act which authorizes the submission of interrogatories to a 1. jury is not clear. Acts 1897 p. 128, § 572 Burns 1914. It is indefinite and incomplete. It does not fit other provisions of the Code (as the Code was at the time this act became effective); and it is difficult, if not impossible, to determine what provisions of the Code, if any, it has repealed by implication. The use and purpose of the interrogatories, the force and effect to be given them, when answered, are not stated in the act. The practice which has been indulged under the act, as evidenced by the decisions, is confusing and baffling. It has often been held, however, that a motion for judgment on the answers to interrogatories notwithstanding the verdict raises the question whether or not the answers to the interrogatories are in irreconcilable conflict with the verdict. Illinois Car, etc.,Co. v. Brown (1917), 67 Ind. App. 315, 326. But counsel are attempting here to use that motion to present a wholly different question, viz.: Are the answers to the interrogatories in irreconcilable conflict with the complaint? We are clearly of the opinion that interrogatories may not be used for that purpose.
There may be several reasons for adopting that view; but only one will be given. The Civil Code contains specific directions for the presentation of the precise question which counsel 2. have sought to present by the motion for judgment on the interrogatories. The plan prescribed by the Code for presenting that question is ample, direct, simple and effective. Under the Code, the question is properly presentable by a motion for a new trial. §§ 402, 585, clause 6, Burns 1914, §§ 393, 559 R.S. 1881. The way of the Code must be followed. The devious and uncertain road proposed by the appellant must be shunned. The determination of the question which counsel have attempted to present by the motion for judgment on the *Page 49 interrogatories, as answered, necessarily involves a consideration of the evidence; and it is uniformly held that in determining the real question presented by that motion, the evidence will not be considered. City of Jeffersonville v.Gray (1905), 165 Ind. 26.
Under the third assignment of error, we will consider the contention that the verdict rests on a "theory" wholly different from the one stated in the complaint.
A variance between the allegations and the proof is a common occurrence. In recognition of that fact, the following section was made a part of the Civil Code:
"No variance between the allegations in a pleading and the proof is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must be shown in what respect he has been misled; and, thereupon, the court may order the pleading to be amended on such terms as may be just." § 400 Burns 1914, § 391 R.S. 1881.
The purpose of that section is to prevent sacrificing substance to shadow; to avoid subordinating substantive rights to mere procedure; to minimize the expense of litigation; and to facilitate and expedite the administration of justice.
It is a fundamental principle of jurisprudence that a final judgment shall forever put at rest the controversy involved in the litigation. The controversy involved can be 3, 4. determined only from the pleadings, and the pleadings are an essential part of the record. Unless, therefore, the judgment follows the pleading on which it rests, the parties themselves may subsequently become involved in litigation concerning the same subject and then find that the record *Page 50 affords no means by which to determine exactly what matters were adjudicated in the former litigation.
In view of the Code, it is obvious that every case of deviation is not to be regarded as a change of "theory." How far, then, may one depart from the path designated in the complaint before 5. the deviation will cease to be a variance and become a change of "theory"? In extreme cases, the answer to that question is not difficult to find. It is clear that a plaintiff may not have judgment where he proves over proper objections a cause of action which belongs to a class of actions wholly different from the class to which the cause of action averred in his complaint belongs. And it has been held that proof of an implied contract will not sustain a judgment where the complaint declares on an express contract, and vice versa. Riley v.Walker (1893), 6 Ind. App. 622; Louisville, etc., R. Co. v.Barnes (1896), 16 Ind. App. 312. In cases of such wide deviation it is clear that the substantial rights of the defendant are jeopardized. One of the ways in which a defendant would be prejudiced in his substantial rights, if such judgments were permitted to stand, is that in the event of future litigation, his safety would be imperiled by reason of the fact that it would be difficult, if not impossible, to protect himself by invoking the principle of former adjudication.
Does the record now before us disclose a case of variance which might have been cured by amending the complaint? In attempting to reach a satisfactory answer to that question, manifestly the first step should be an examination of the complaint.
Before instituting an action founded upon negligence, it is the duty of counsel in every instance, except where negligence is presumed, to determine for himself the particular act or 6, 7. omission constituting the negligence to be charged and then to state that *Page 51 act or omission accurately and clearly in the complaint. § 343 Burns 1914, § 338 R.S. 1881; Pittsburgh, etc., R. Co. v.Nichols, Admr. (1921), 78 Ind. App. 36; New York, etc., R.Co. v. Callahan (1907), 40 Ind. App. 223. A disregard of that duty usually results in extended controversy and prolonged litigation which its observance would have avoided. In the case at bar, that duty has been quite imperfectly discharged. While the courts should not encourage slovenly pleading, nevertheless the Code requires that pleadings "shall be liberally construed with a view to substantial justice between the parties." § 385 Burns 1914, § 376 R.S. 1881.
Does the averment that the defendant "had wrongfully constructed one or more tracks across Ewing street" necessarily relate exclusively to the original construction? Does the word "wrongfully" necessarily mean without governmental authority? We are of the opinion that each question must be answered in the negative. A motion to require the plaintiff to make that averment more definite and certain would have been appropriate (§ 385 Burns 1914, supra); but no such motion was made.
One of the fundamental reasons for requiring a complaint in writing is to inform the defendant of the nature of the plaintiff's cause of action with sufficient definiteness 8, 9. to enable him to prepare his defense. In the case at bar, counsel for the defendant did not claim to have been misled in the preparation of the defense. § 400 Burns 1914,supra. Indeed they could not have been misled in that respect. The complaint plainly directed their attention to the condition of the track at the Ewing street crossing on the day of the accident, and to the manner in which the accident occurred. At the trial, the defendant was ready with witnesses and was prepared to dispute and did dispute in detail the plaintiff's evidence with respect *Page 52 to the condition of the track and crossing at the time and place of the accident. The "theory" of the complaint, as determined from its general scope and tenor, is negligence; and the particular act or omission constituting the alleged negligence is the fact that the company suffered the track to be in a condition dangerous to pedestrians at the time and place of the accident. The negligence thus alleged was vigorously contested by the defendant. The fact that the defendant treated the averment of negligence as ambiguous and was not content with its effort to contradict the plaintiff's evidence which was directed solely to the condition of the track and crossing at the time and place of the accident, but went further and showed by its evidence that the original construction was by another company and was not without governmental authority, will not deprive the plaintiff of her judgment.
To avoid any misunderstanding, it should be stated that where a plaintiff attempts to prove a negligent act or omission other than the one averred in the complaint, a timely and 10, 11. proper objection should be sustained. Thereupon, it becomes the duty of the court, in the interest of justice, to take charge of the situation. The court may permit the complaint to be then amended. If the complaint be amended, then, if the facts warrant, the defendant may claim a surprise and obtain a continuance. That practice will usually prevent a variance and avoid future trouble. But where the plaintiff's evidence, whatever it may tend to prove, is permitted to be adduced without objection, the defendant may not escape the consequences solely on the ground that there is a mere variance between the proof and the averments of the complaint.
The case has been fairly tried and the record is a complete bar to another recovery for the same injuries. *Page 53
The amount of damages awarded is not excessive. No other questions are presented.
Judgment affirmed.