Petition for rehearing denied December 30, 1930 ON PETITION FOR REHEARING (294 P. 594) In Banc. In a petition for rehearing we are told that, in its original decision herein, the court "overlooked and disregarded the plain mandate of statutes relating to variance between pleading and proofs." These statutes would be applicable if the questions to be decided had reference to the admissibility of testimony or the adequacy of proof. No such questions are presented here. To examine the records of a case for the purpose of determining such questions, where no objections nor exceptions are taken in the court below, would constitute this court a reviewing tribunal of every feature of every case brought here only by a transcript of the testimony. This would be unfair to the prevailing party, unjust to the lower court, and unspeakably onerous to this court; hence, the doctrine, that in such a state of the record, this court has only to decide whether the pleading supports the judgment.
It is neither a new nor strange doctrine that in actions at law there must be a pleading to support a judgment: Lebb v.Peabody, 103 Or. 405, 415 (205 P. 819); Almada v. Vandecar,94 Or. 515, 518 (185 P. 907). In the case of Olds v. Von der Hellenet al., 127 Or. 276, at p. 293 (263 P. 907, 270 P. 497), the rule is concisely stated thus:
"A plaintiff is never allowed more than he demands in actions for damages. Plaintiff is bound by his admission and allegations respecting the insurance, and the court should not deny defendants the benefit thereof."
Respondent should have alleged the terms of the policy applicable to the state of facts set forth in her complaint: 26 C.J., 489, § 690, note 68 and cases cited: *Page 41 11 Ency. of Pl. Pr. 413, notes 3 and 4. An entire failure to comply with this rule would have restricted the recovery to nominal damages only.
In the original opinion, we applied the rule of construction which declares that to be certain which may be made certain. Guided by that rule, we gave heed to the reference in the complaint to the policy in suit by serial number and date of execution; and considered the policy itself, which was introduced by plaintiff and not objected to. Thus construing the complaint, we held that, after judgment, it is sufficient to support the verdicts and judgment, except as stated. We adhere to that holding.
The judgment we rendered, however, if not modified, will have the effect of denying respondent the right of a retrial. We think that, if respondent desires a retrial of this case, we should so direct.
The motion for a rehearing will be denied without prejudice to a motion by respondent for a modification of the judgment entered by this court to the effect that the cause be remanded to the lower court for a retrial, provided that said motion for such modification shall be filed on or before ten days hereafter; and it is ordered that issuance of mandate herein shall be withheld for ten days for the purposes of such motion.
Respondent suggests that the point on which this court modified the judgment of the trial court was not presented to the trial court, and, if it had been presented, there is a presumption that the trial court would have followed the law and no appeal would have been necessary. We have no inclination to minimize the difficulty confronting the learned and experienced trial court in passing upon the validity in whole or in part of the special verdict in this case; yet, in all cases when *Page 42 a verdict is tendered the question of the sufficiency of the pleadings to support such verdict is presented.
Upon respondent's objections to appellant's cost-bill, it is urged that the item of $160.20 claimed for transcript of testimony was not necessary to present any matter presented on this appeal. As a matter of evidence this is true, and as a matter of procedure, where no exceptions have been taken, there need be no bill of exceptions; but without the policy of insurance to which plaintiff referred in her complaint, this court would have been unable to have given a construction to such complaint, which would support a judgment for more than nominal damages. The policy in question came to this court as part of the transcript of testimony, which transcript of testimony is attached to and made a part of a bill of exceptions. For this reason we think that respondent's objections to the expense attendant upon presenting such transcript and bill of exceptions is not well taken.
As to respondent's objections to the item of $67.60 premium for stay bond, we think appellant is entitled to this item, because it was incurred to prevent an execution upon an excessive judgment.
Motion for rehearing overruled without prejudice to a motion to remand.
Objections to cost-bill overruled. *Page 43