Mercier v. Travelers Insurance

Citations

• 24 Wash. 147
• 64 P. 158
• 1901 Wash. LEXIS 507

Syllabus

<p>PLEADING AND PROOF-VARIANCE-MATERIALITY.</p> <p>Where the complaint in an action upon an accident policy to recover ror the death of the insured alleged that he fell and bruised his left side, directly over the heart, and died as a direct result of such injury, and a bill of particulars filed in connection with such complaint alleged that the death of the insured was caused by the injuries to his side, and the character of the injuries causing his death were described as being a bruise and injury upon the side directly over the heart, causing a malignant growth of spleen and fatty degeneration of the heart, the ultimate fact alleged is that the death was caused by the injury to his side, and the pleader’s conclusion that the injury produced malignant growth of spleen and fatty degeneration of the heart, while the evidence showed that the injury produced inflammation of the pericardium instead, would constitute but an immaterial variance, which could not have misled the defendant to its prejudice.</p> <p>VERDICT —■ INCONSISTENCY BETWEEN GENERAL AND SPECIAL.</p> <p>Where a complaint, in addition to containing sufficient facts to state a cause of action, includes in its allegations immaterial statements, which amount to nothing more than the pleader’s conclusion from the facts stated, a special verdict finding against him on such immaterial allegations cannot be held as inconsistent With a general verdict in his favor. ■</p>