dissenting.
This action grows out of an injury to the defendant in error, resulting from the falling upon him of an awning, erected over a sidewalk along which the defendant in error was walking. The principle upon which it is contended that the city is liable is, that it was the city’s duty to use proper care to guard the sidewalk from dangers *129which existed by the city’s consent; that the omission to nse such care by the city constitutes negligence upon its part, for which it must respond in damages for an injury to any one caused proximately by such negligence.
The declaration is in three counts. The first two allege that the city negligently permitted a certain frame awning projecting over the sidewalk at a certain point on a certain street to become and remain in an unsafe and defective condition and dangerous to pedestrians passing along the sidewalk; that the awning was without sufficient supports, fastenings and stays to prevent its falling upon pedestrians. These two counts allege that the plaintiff below was walking along the sidewalk, and while under the awning a horse which was tied to one of the posts of the awning which supported its outer edge, became frightened and jerked the lines with which it was tied and pulled the post from under the awning which fell upon the plaintiff and injured him.
The third count alleges that the city negligently permitted the sidewalk on a certain street at a certain place to become and remain in an unsafe and defective condition and dangerous to pedestrians passing along the sidewalk, and that while the plaintiff was walking along the sidewalk and under the awning, the horse which was tied to the post supporting the outer edge of the awning became frightened and jerked the post from' under the awning, which fell upon the plaintiff and injured him. This count alleged that the awning post to which the horse was tied was not “fastened or mortised” in the sidewalk.
It then affirmatively appears from the declaration that the proximate cause of the injury was the force exerted by the frightened horse in jerking away the support of the awning and causing it to fall. The city’s *130liability therefore for an injury to a pedestrian caused in that manner would depend upon the city’s duty to use such care as is reasonably necessary to avoid such danger to pedestrians, and that duty would depend upon the city’s consent or acquiesence in the use of those particular awning posts, or awning posts generally in the city for tieing horses or other such animals to them. The majority opinion concedes so much. It states that the “defendant’s liability in damages covers injuries caused in the ordinary, usual or customary use of the posts supporting the awning.”
It is not alleged that the awning was an obstruction and interfered with the ordinary use of the street, therefore the case of Janes v. City of Tampa, 52 Fla. 292, 42 South. Rep. 729, has no application. Nor is it alleged that hitching a horse to'the awning posts in the city was an ordinary, usual or customary use of the awning posts, therefore the case of Hembling v. City of Grand Rapids, 99 Mich. 292, 58 N. W. Rep. 310, does apply and is authority for the position that in the absence of such customary use of awning posts in this city it would not be liable for an injury to a pedestrian caused in the manner alleged in the declaration.
But if hitching horses to awning posts in Tallahassee is a usual and customary use of such posts and the city is deemed to have consented or acquiesced in such custom, it is a necessary element in the plaintiff’s right to recovery and a failure to allege such custom in the declaration renders it fatally defective as stating a cause of action. Because a declaration in an action at law should by direct allegations or by fair inference from direct allegations contain all essentials of a cause of action. See German-American Lumber Co. v. Brock, 55 Fla. 577, 46 *131South. Rep. 740; Leynes v. Tampa Foundry & Mach. Co., 56 Fla. 488, 47 South. Rep. 918; Woodbury v. Tampa Water Works Co., 57 Fla. 249, 49 South. Rep. 556; Sylvester v. Lichtenstein, 61 Fla. 441, 55 South. Rep. 282; Williams v. Pringle, 61 Fla. 485, 54 South. Rep. 452.
The rule that where a declaration fails to allege substantive facts that are essential to a light of action the trial court or appellate court may take notice of such fatal defect and make proper disposition of the cause has been announced by this court. See Hall v. Northern & Southern Co., 55 Fla. 242, 46 South. Rep. 178; Sylvester v. Lichtenstein, supra; Capital City Bank v. Hilson, 59 Fla. 215, 51 South. Rep. 853; Kirton v. Atlantic Coast Line R. Co., 57 Fla. 79, 49 South. Rep. 1024.
These rules of pleading are elementary. Merely to state them is to prove their validity. They rest upon the doctrine that the defendant in every action should be apprised with sufficient definiteness and clearness of the charge which seeks to fasten a liability upon him to the end that he may be enabled to prepare a proper defense. Not to do that is to take him by surprise, to put him at a disadvantage, to handicap him in a court of justice, to deny him equal protection, to impose upon him, oppress h,im, tyranize over him and defraud him.
According to the declaration the negligent act or omission of the city consisted in its failure to cause awnings to be erected of such materials and with such substantialness as to resist the force that might be exerted upon them by frightened horses that may be tied to them by ropes or lines sufficient to resist the struggles of the horses. The omission of the city to make provision against such dangers could not constitute negligence unless the city consented to or acquiesced in the custom of *132tieing horses to awning posts, which custom if it existed certainly would add .an element of danger entirely foreign to that which may reasonably be said to exist to pedestrians from the erection of awnings over sidewalks .in cities. Awnings over sidewalks are not erected in cities to serve as “horse racks” of hitching posts. Such purpose is foreign, non-essential, accidental to that which an awning is intended to serve.-
It is simply unreasonable to say that when an awning is erected over a sidewalk in á city it becomes the city’s duty to cause it to be constructed of such materials or-in such manner as to resist any force that may be exerted upon it by a pair of mules or a horse which may be tied to it by ropes and which.may become frightened and try to break away. It is irrational to suppose that such a sequence .of events might follow upon the erection of an awning over a sidewalk to .protect pedestrians and the building front and from the sun’s rays and rains, unless, a-custom existed .in the community of hitching horses to the awning posts. If that custom existed the city’s duty would be apparent. If it did not exist there would be no duty upon the city’s part to take any reasonable precaution to avoid such danger.
The declaration did not allege such custom. -It was therefore deficient in. an essential allegation of fact. A fact necessary to .the defendant’s liability, an essential element to a cause of action resulting from injury occurring as the declaration alleged.
A recovery can be had only upon the case made by. the declaration; the allegata and probata must correspond.- 'If no case is made by the declaration, there can be no recovery upon the case made by the proof, however perfect the latter may be. See Coons v. Pritchard, 69 Fla. *133362, 68 South; Rep. 225; Ingram-Dekle Lumber Co. v. Geiger, 71 Fla. 390, 71 South. Rep. 552; Louisville & N. R. Co. v. Guyton, 47 Fla. 188, 36 South. Rep. 84.
But the majority opinion holds that under Chapter 6223, Acts of 1911, the “technical defect” was cured by verdict. It was not the pnrpose of that Act to sacrifice justice to dispatch, nor to deprive a party litigant of the right to be advised of the charge against him.
It is said that the city could not have been misled by the failure to allege that it was customary to hitch horses to posts supporting awnings over sidewalks in the city. The point is, that the failure to allege .that fact and that the custom was acquiesced in by the city urns necessary to the statement of a cause of action.. The failure to make that allegation was. not a mere technical defect in form to be cured by a verdict, but it was a defect in substance rendering the declaration bád in that it stated no cause of action.
I therefore think that the demurrer should have been sustained.
Taylor, J., concurs.