Wabash Western Railway Co. v. Friedman

Citations

• 146 Ill. 583

Syllabus

<p>1. Allegations and proofs—musí correspond. The defendant will have the right to insist that the grounds upon which the plaintiff claims the right to recover shall be clearly and concisely stated, and that the case made in the declaration shall be proven as alleged. One cayse of action can not be alleged and a different one proved, over the defendant’s objection made in proper time.</p> <p>2. Same—in action by a passenger against a carrier. In an action founded on an express or implied contract, against a carrier, for negligence, the declaration must correctly state the contract, or the particular duty or consideration irom which the liability results and on which it is based, and a variance in the description of the contract, though in an action ex delicto, may be fatal as in an action ex contractu. The declaration will be defective if it fails to show that by express contract, or by implication of law, in respect to the defendant’s particular character or situation, he was bound to do or omit the act for which he is charged.</p> <p>3. Same—as to proof of necessary inducement. In general, every allegation in an inducement which is material, and not impertinent and foreign to the cause of action, and which consequently can not be rejected as surplusage, must be proved as alleged, and a variance will be fatal.</p> <p>'4. If a necessary inducement of the plaintiff’s right, etc., even in actions for torts, relates to and describes and be founded upon a matter of contract, it is necéssary to be strictly correct in stating such contract, it being matter of description. Hence, even in cases against a carrier, if the termini of the journey undertaken be misstated, the variance will be fatal.</p> <p>5. In an action on the case by a passenger, against a railway company, to recover for a personal injury from negligence, the declaration alleged that the plaintiff became and was a passenger, to be carried from A to B, two stations on the road. There was no evidence that piain