I concur, but for clarity desire to state my reasons. A close analysis of the complaint reveals two sets or types of negligence referred to in the complaint with their accompanying results and effects on plaintiff and his cause of action. There is first a description of the stage upon which the action took place, in which it is sought to show that some of the arrangements in the kitchen, the set-up there, were such as to be inherently dangerous, or the subject of potential injury, in case of even a slight disorder or accident. Such was the placing of a can of hot grease on a stand with a small surface so close to the place where people must walk, and from which it could easily be dislodged. So also the failure to have guards or rails around the can, or fastening it down to prevent dislodgment or upsetting, and the absence of a cover on the can. These things are alleged, not in and of themselves as causes of plaintiff's fall but as a dangerous situation not properly safeguarded against, and which conditions, known to defendants, were proximate causes of the nature and extent of plaintiff's injuries. That maintenance of such conditions, with their potency for injury and harm, was negligence on the part of defendants, which negligence was a contributing proximate cause of the injuries suffered by plaintiff.
The second group of negligent acts are those of a more active and direct nature, to wit, the maintaining of a slick and highly polished floor, the spilling of grease on the floor in the only passageway, allowing the grease to remain thereon, and the failure to provide proper lights in the passageway. *Page 417 These are alleged as the active, inducing or initiating causes of the fall, they are the things which immediately caused plaintiff to slip and fall, as a result of which fall he sustained the injuries upon which his cause of action is predicated. They were the direct and proximate causes of the fall, of which plaintiff's injuries were the direct and proximate result. These elements constitute the negligence without which plaintiff could not maintain this action, even though all the first group were proved. The action could be maintained however on the second group even though the first group were neither alleged nor proved.
Then plaintiff sets up the combination of these groups, that is, their working in unison to produce the injuries he sustained. I think plaintiff's attempts to allege that because of defendant's negligence in not sufficiently lighting the passageway, in keeping the floor slick and highly polished, in spilling and allowing grease to remain on the passageway floor, he slipped and fell; that in so falling he upset the can of hot grease and was badly burned; that had defendants not maintained the unguarded, uncovered, unfastened can of hot grease at that narrow point in the darkened, slick passageway the resultant injury of a fall there would have been much less; and therefore defendant's negligence in both respects were the proximate causes of his injuries — one as the initiating cause of the fall, and the other as the primary damage creating element. A repleading and rearrangement of the allegations would have clarified the issues and prevented the error in instructions.
The complaint is inartfully drawn because in describing the whole set-up and arrangement of the kitchen there is no allegation that there was anything neligent or dangerous about it, then alleges that defendants "negligently and carelesslycaused the grease to spill * * * and the floor to become slickand slippery * * *." thereby causing him to fall and the grease to spill upon him; and then alleges "that the careless andnegligent acts on the part of the defendant aforesaid were the proximate cause of plaintiff's *Page 418 injuries." Then follows an enumerating of other acts which are then for the first time called "negligent and careless acts." To name after matters which were not set-up among the aforesaid negligent and careless acts "which were the proximate cause of plaintiff's injuries," may be confusing and inartful, but a careful analysis of the allegations reveals the intent and meaning thereof, even though a better and more logical arrangement and order among the allegations would have improved the form of the pleading. The mere characterization of an act as "careless" or "negligence" is not an allegation of fact, but merely the pleader's characterization or description of an act. If the setting forth of the act itself characterizes it as negligently done, the use of a descriptive word, while helpful to some readers, does not add to the legal effect or import of the act. Ofttimes it is easier to characterize an act as "carelessly and negligently done" than it is to put into other words a description which would so show, but once an act is so pleaded as to convey to the mind a clear impression that it was done in a negligent manner, the failure to use the word "negligent" is not fatal, especially after trial. Of course, it does not suffice to simply plead an act as committed, and argue that upon trial the proof will show it was negligently done. The pleading should show, either from the inherent nature of the act itself, or by the manner of its performance, that such doing thereof was negligent and careless. We need not consider what the effect would be had timely objection been raised below that the matters in paragraph (6) of the complaint were surplusage and not alleged as proximate causes of the injuries because before they were set out as negligent acts, the complaint enumerated certain other acts and then alleged that the negligent acts aforesaid were the proximate cause of plaintiff's injuries, because that objection was not made, and defendants treated paragraph 6 as though its provisions were allegations of proximate causes.
Defendant's special demurrer was directed at these allegations, not as surplusage but as uncertain as to how they were *Page 419 the proximate cause of the accident. As indicated above the accident consists of two elements, the fall, and the injuries sustained thereby. Some of these elements were the proximate cause of plaintiff's fall, and others were the proximate cause of the nature and extent of the injury sustained. The two of them constitute the accident, or the basis of plaintiff's cause of action. Bearing this in mind we cannot say overruling the special demurrer is reversible error. A special demurrer for uncertainty is much like a "motion to make more certain and definite." Although it should have been granted, the denial thereof, after issue joined and trial had often does not assume the proportions of reversible error.
It would have been better as a matter of practice had the court sustained the special demurrer and required counsel to replead and rearrange his allegations to clarify and simplify the issues. When a pleading is timely attacked by demurrer, it should be construed against the pleader. The best pleading, the most definite and concise of which the facts reasonably admit, is none too good. Counsel is not responsible for and has no control over the facts, but the pleadings are his offspring, sired by his knowledge and damed by his ingenuity, and they should be his pride and joy. It is far better that such offspring die aborning than to live until charged with the duty of supporting a judgment, and then die an ignominious death upon the gallows of the appellate court.
But I concur in the holding that the judgment must be reversed. The cause was not submitted to the jury upon the theory of the pleadings as outlined above. By instruction No. 1, the court told the jury that plaintiff alleged and set up six separate and distinct acts of negligence, and enumerated them, "(a) in maintaining a stand with hot oil in cans by the passageway. (b) in failing to guard the place where the grease was. (c) in failing to keep the grease cans covered. (d)(e)(f) * * *."
By instruction No. 4 the jury was told that if "defendant was negligent in any one of the particulars" above set out and "said negligence was the proximate cause of the injury" *Page 420 plaintiff was entitled to recover. It is elemental and fundamental that a party can only recover upon the theory of liability which he has alleged in his pleadings. Yet under this instruction if the jury found that a can of hot grease was maintained on a stand near the passageway, or even that the lid was left off a can of hot grease, and that plaintiff's injuries (burns) were the proximate result of contact with the grease plaintiff should recover, regardless of how he came into contact with the grease. Under the instruction plaintiff could recover had he fainted and fallen into the grease, or had he when walking along the passageway walked into the grease, or had he attempted to crawl upon the stand and upset the grease. It may be that in either of such situations plaintiff could state an action for recovery. But he did not attempt to do so, or assert, allege or rely upon any such theory of liability. Instructions should be so framed as to make clear, and confine the jury to, the basis of liability alleged in the complaint and permit recovery on no other theory. This instruction went far beyond the theory of the action or the issue in the pleading as to the basis of liability. No useful purpose would be subserved by a dissertation upon the matter. I merely indicate this much to avoid a repetition of such faulty instruction upon a retrial.
For this reason I concur in the order reversing the judgment. I reserve from my concurrence, however, what is said as to the testimony of Dr. Openshaw.