Ætna Life Insurance v. Rehlaender

Pound, C.,

concurring.

I concur for the reason that the instructions complained of submitted to the jury the issue tendered by the defendant’s answer. Not only has the defendant framed its answer upon the theory upon which the case was submitted to the jury, but it tried its case upon that basis. Having-pleaded and introduced evidence upon one theory, it was in no position to ask the court to instruct the jury upon another, or to complain of the action of the court in adopting the theory presented by the answer and the evidence.