Mr. Chiee Justice Scott
delivered the opinion of the court:
Appellant contends that there was á misjoinder of defendants in the suit brought by the appellee against it and Worker, and that its motion in arrest of judgment should therefore have been sustained. In this connection a number of authorities are cited from foreign States and two from the Appellate Courts of this State as sustaining the proposition that a master and servant cannot be joined as defendants in an action for personal injuries where the master can only be held liable on account of the negligence of the servant with whom he is joined as defendant, under the doctrine of respondeat superior. We do not consider those cases applicable here. The declaration charged that Worker and Peterson gave appellee a negligent order and that his compliance therewith resulted in the accident. Worker stood to appellee in the relation of a vice-principal. He, personally and individually, owed to appellee the duty not to give him any order negligent in character. The same' duty rested upon the appellant. Consequently, if a negligent order was given by Worker it was an affirmative wrong done by him in violation of a common duty owed by appellant and Worker to appellee and constituted Worker and appellant joint tort feasors, and they were therefore properly joined. (5 Thompson on Corporations, sec. 6289; Deere v. Chicago, Milwaukee and St. Paul Railway Co. 85 Fed. Rep. 876; P. G. M. Co. v. A. & S. C. Co. 118 U. S. 264; Howe v. Northern Pacific Railway Co. 30 Wash. 569; Morrison v. Northern Pacific Railway Co. 34 id. 70.) The motion in arrest of judgment was rightfully denied.
It is then contended that a verdict and judgment against appellee having passed in favor of Worker, the judgment against appellant must be set aside and judgment entered in its favor in this court. The appellee’s proof showed that Worker gave him no order to assist in repairing the belt on the day of the accident. Under these circumstances a judgment in Worker’s favor is not necessarily inconsistent with a judgment against appellant.
The third count of the declaration alleged that repairing the belt by using the staples was repairing it in a defective manner; that these staples had been placed in the belt some time before the injury, thereby rendering the work of appellee in assisting in the repair of said belt when it would thereafter break, more hazardous; that shortly before the injury appellee “objected to defendants about the use of said belt so tacked together” and requested them to have said belt properly repaired, which the defendants promised to do, but that they failed to properly repair said belt. The proof made by appellee, however, was, that he did not know of the presence of these staples in the belt until his hand was caught on them at the time of the injury, and that he never at any time made any complaint concerning those staples. Appellee first insists there is no variance, by the following language quoted from his brief, to-wit: “It is said in the brief of appellant that the declaration averred that plaintiff had knowledge of the use of staples. The appellee contends that the declaration does not so state, but simply gives a description of the condition of the belt, which was ascertained after the accident.”
This makes important the precise words used in the third count, "which, after averring the duty of defendants to replace the defective piece of the belt, continues: “The defendants, not regarding their duty in that behalf, caused said portion to be fastened together with staples or tacks, thereby rendering the service of the plaintiff in assisting to repair said belt more hazardous than it had theretofore been; and thereupon the plaintiff repeatedly, and shortly before the injury, objected to defendants about the use of said belt so tacked together, and repeatedly, and shortly before said injury, requested defendants to have said belt properly repaired, and said defendants promised the plaintiff to have the same repaired; that plaintiff, relying on said promise, continued in his said service and in the performance of the duties thereof for a reasonable time, to permit the performance of said promise on the part of the said defendants, but the said defendants wholly neglected and failed to provide a new or properly repair said belt, and by reason of said neglect and failure of the said defendants to supply a new or properly repair said belt, it frequently broke and gave away,” etc.
We think that the averments in reference to the staples do not simply give a description of the condition of the belt which was ascertained after the accident. The statements in reference to the complaint made by appellee, the promise to repair and the continuance in the employ to permit defendants to comply with their promise, all show that the meaning of the language used is that appellee had knowledge of the existence of the staples or tacks in the belt prior to the time of the accident.
Appellee says, however, that if there be a variance, appellant did not raise the question in the proper way nor in apt time. The variance was called to the attention of the trial court immediately upon the close of the plaintiff’s evidence in chief by a motion to strike out the testimony of the plaintiff regarding his knowledge or lack of knowledge of the use of the staples in the belt, “for the reason that it varies from the allegations of the declaration, particularly from the allegations of the third count thereof.” Appellee might at that time have sought leave to amend his declaration to conform to his proof. The variance was again pointed out in the motion for a peremptory instruction at the close of all the evidence, at a time when the trial court could have allowed the amendment, or, in the absence of amendment, could have given the peremptory instruction if the proof offered in support of the second or third count did not warrant its denial.
Appellee insists that the motions did not specifically point out the variance. It is not necessary in the motion to set out the language of the pleading and then to set out the evidence and point out by the motion the exact difference between the two. It is only necessary to so present the matter that the trial court can clearly understand the grounds of the motion and pass intelligently thereon.
In Libby, McNeill & Libby v. Scherman, 146 Ill. 540, it is said (p. 549) : “To present the question of variance as one of law the evidence should have been objected to at the time it was offered on that ground, or, when the variance became apparent, counsel should have moved to exclude the evidence, or in some other appropriate way the question should have been so raised that the trial judge could have passed upon it.”
In our judgment the question was properly presented, and the variance was material. Appellee by the third count evidently intended to base a cause of action on statements to the effect that appellee knew of the presence of the staples, which had been placed in the belt more than a year prior to the injury; that he objected to handling the belt with those staples in it; that the defendants thereupon promised to have them removed and to have the belt properly repaired, and that appellee, relying on this promise, continued in the service for a reasonable time, during which time the accident occurred.
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Mr. Chiee Justice Scott
delivered the opinion of the court:
Appellant contends that there was á misjoinder of defendants in the suit brought by the appellee against it and Worker, and that its motion in arrest of judgment should therefore have been sustained. In this connection a number of authorities are cited from foreign States and two from the Appellate Courts of this State as sustaining the proposition that a master and servant cannot be joined as defendants in an action for personal injuries where the master can only be held liable on account of the negligence of the servant with whom he is joined as defendant, under the doctrine of respondeat superior. We do not consider those cases applicable here. The declaration charged that Worker and Peterson gave appellee a negligent order and that his compliance therewith resulted in the accident. Worker stood to appellee in the relation of a vice-principal. He, personally and individually, owed to appellee the duty not to give him any order negligent in character. The same' duty rested upon the appellant. Consequently, if a negligent order was given by Worker it was an affirmative wrong done by him in violation of a common duty owed by appellant and Worker to appellee and constituted Worker and appellant joint tort feasors, and they were therefore properly joined. (5 Thompson on Corporations, sec. 6289; Deere v. Chicago, Milwaukee and St. Paul Railway Co. 85 Fed. Rep. 876; P. G. M. Co. v. A. & S. C. Co. 118 U. S. 264; Howe v. Northern Pacific Railway Co. 30 Wash. 569; Morrison v. Northern Pacific Railway Co. 34 id. 70.) The motion in arrest of judgment was rightfully denied.
It is then contended that a verdict and judgment against appellee having passed in favor of Worker, the judgment against appellant must be set aside and judgment entered in its favor in this court. The appellee’s proof showed that Worker gave him no order to assist in repairing the belt on the day of the accident. Under these circumstances a judgment in Worker’s favor is not necessarily inconsistent with a judgment against appellant.
The third count of the declaration alleged that repairing the belt by using the staples was repairing it in a defective manner; that these staples had been placed in the belt some time before the injury, thereby rendering the work of appellee in assisting in the repair of said belt when it would thereafter break, more hazardous; that shortly before the injury appellee “objected to defendants about the use of said belt so tacked together” and requested them to have said belt properly repaired, which the defendants promised to do, but that they failed to properly repair said belt. The proof made by appellee, however, was, that he did not know of the presence of these staples in the belt until his hand was caught on them at the time of the injury, and that he never at any time made any complaint concerning those staples. Appellee first insists there is no variance, by the following language quoted from his brief, to-wit: “It is said in the brief of appellant that the declaration averred that plaintiff had knowledge of the use of staples. The appellee contends that the declaration does not so state, but simply gives a description of the condition of the belt, which was ascertained after the accident.”
This makes important the precise words used in the third count, "which, after averring the duty of defendants to replace the defective piece of the belt, continues: “The defendants, not regarding their duty in that behalf, caused said portion to be fastened together with staples or tacks, thereby rendering the service of the plaintiff in assisting to repair said belt more hazardous than it had theretofore been; and thereupon the plaintiff repeatedly, and shortly before the injury, objected to defendants about the use of said belt so tacked together, and repeatedly, and shortly before said injury, requested defendants to have said belt properly repaired, and said defendants promised the plaintiff to have the same repaired; that plaintiff, relying on said promise, continued in his said service and in the performance of the duties thereof for a reasonable time, to permit the performance of said promise on the part of the said defendants, but the said defendants wholly neglected and failed to provide a new or properly repair said belt, and by reason of said neglect and failure of the said defendants to supply a new or properly repair said belt, it frequently broke and gave away,” etc.
We think that the averments in reference to the staples do not simply give a description of the condition of the belt which was ascertained after the accident. The statements in reference to the complaint made by appellee, the promise to repair and the continuance in the employ to permit defendants to comply with their promise, all show that the meaning of the language used is that appellee had knowledge of the existence of the staples or tacks in the belt prior to the time of the accident.
Appellee says, however, that if there be a variance, appellant did not raise the question in the proper way nor in apt time. The variance was called to the attention of the trial court immediately upon the close of the plaintiff’s evidence in chief by a motion to strike out the testimony of the plaintiff regarding his knowledge or lack of knowledge of the use of the staples in the belt, “for the reason that it varies from the allegations of the declaration, particularly from the allegations of the third count thereof.” Appellee might at that time have sought leave to amend his declaration to conform to his proof. The variance was again pointed out in the motion for a peremptory instruction at the close of all the evidence, at a time when the trial court could have allowed the amendment, or, in the absence of amendment, could have given the peremptory instruction if the proof offered in support of the second or third count did not warrant its denial.
Appellee insists that the motions did not specifically point out the variance. It is not necessary in the motion to set out the language of the pleading and then to set out the evidence and point out by the motion the exact difference between the two. It is only necessary to so present the matter that the trial court can clearly understand the grounds of the motion and pass intelligently thereon.
In Libby, McNeill & Libby v. Scherman, 146 Ill. 540, it is said (p. 549) : “To present the question of variance as one of law the evidence should have been objected to at the time it was offered on that ground, or, when the variance became apparent, counsel should have moved to exclude the evidence, or in some other appropriate way the question should have been so raised that the trial judge could have passed upon it.”
In our judgment the question was properly presented, and the variance was material. Appellee by the third count evidently intended to base a cause of action on statements to the effect that appellee knew of the presence of the staples, which had been placed in the belt more than a year prior to the injury; that he objected to handling the belt with those staples in it; that the defendants thereupon promised to have them removed and to have the belt properly repaired, and that appellee, relying on this promise, continued in the service for a reasonable time, during which time the accident occurred. The purpose was to show that appellee did not assume the risk arising from the presence of the staples in the belt, even though he knew of their existence.
It was essential to appellee’s case that he aver and prove eithér that he did not know of the defect which caused the injury and was not chargeable-with knowledge of it, or that he knew of it and that the circumstances were such that he had not assumed the risk. (Sargent Co. v. Baublis, 215 Ill. 428, and cases there cited.) When he alleged, as in the third count, that he knew of the defect, had made complaint thereof, and was continuing in the service under a promise of the master to repair at the time he (appellee) was injured, he should not have been permitted to recover under proof that he did not know of the existence of the defect, unless the declaration was amended to conform to such proof. If such procedure as was here followed were to be permitted, then, as said in Wabash Western Railway Co. v. Friedman, 146 Ill. 583, “a declaration would be a delusion, and instead of affording a defendant notice of what he was called upon to meet, it would be a deception.” If one purpose of the declaration is to notify the defendant of the nature and character of the plaintiff’s demand, so that he may prepare to meet the charge against him, then the third count of the declaration in this case has failed to fill its office. Appellant could not be expected to seek evidence to show that appellee knew of the presence of the staples in the belt, when he, in effect, admitted in his declaration that he knew of their presence and set up a state of facts which would excuse him from the assumption of risk which might arise from that knowledge. Appellant was entitled to an opportunity to prepare its defense to the case made by the proof. It did not have such opportunity, and the evidence showing that the appellee did not know of the presence of the staples in the belt should have been stricken out, unless appellee, by cross-motion, obtained leave to amend his declaration to conform to the proof and made amendment accordingly. Had the court pursued this course, then, upon a proper showing, appellant would have been entitled to a reasonable time to prepare its defense to meet the case stated in the amended count of the declaration.
It is next contended that appellee assumed the risk of the defects from which he was injured, and that the court therefore erred in refusing the peremptory instruction offered at the close of all the evidence. We agree with' appellant that appellee assumed .the risk arising from the defects which form the basis for the charges of negligence contained in the first and second counts, but it is apparent that it can not be held, as a matter of law, that he assumed the risk arising from the presence of the staples in the belt if he did not know of their presence and was not chargeable with knowledge of their presence. In reference to the first and second counts, appellee himself testified that he always stood on the angle-iron td do the work in which he was engaged when injured, and that the shaft was never stopped until the belt had been repaired and was ready to be placed on the pulleys. Certainly no one had a better opportunity than appellee to know the dangers attendant upon standing on the angle-iron or attendant upon placing the belt over the revolving shaft. These defects were not hidden or latent. Appellee well knew what sort of a standing place the angle-iron afforded, and well knew that the shaft would not be stopped while he performed his part of the work. Knowledge of the conditions under which this work was to be done was to a man of appellee’s age and experience knowledge of the dangers arising therefrom. Chicago and Eastern Illinois Railroad Co. v. Heerey, 203 Ill. 492.
An exception to the doctrine of assumed risk exists where a servant is ordered by his master to do certain work which is attended with danger of which he is not fully cognizant, and he relies upon the order to do the work as an assurance that he may safely perform the task. This case, as stated by the first two counts of the narr., is not within the exception, however, because appellee had full and complete knowledge of all the dangers attendant upon and resulting from the negligence charged by those two counts, in so far as the evidence tended to prove the same. It is only where the servant has been misled by the order of the master that the exception exists. Rohrabacher v. Woodward, 82 N. W. Rep. 797; Toomey v. Eureka Iron and Steel Works, 89 Mich. 249; Anderson v. Akeley Lumber Co. 47 Minn. 128; Reis v. Struck, 23 Ky. L. 1113; Breckenridge & P. Syndicate v. Murphy, 18 id. 915; Haas v. Balch, 56 Fed. Rep. 984; Showalter v. Fairbanks, Morse & Co. 88 Wis. 376.
Appellee urges, however, that the servant never assumes the risk of defects arising from the master’s negligence. In Browne v. Siegel, Cooper & Co. 191 Ill. 226, it is said that even if the master fails in his duty to furnish the servant a place ordinarily safe in which to work, and there are to the knowledge of the servant defects which render the place unsafe, the servant is held to have assumed the hazard, for he cannot go on, with knowledge of the danger, without complaint until he is injured and then hold the master liable. To the same effect are Armour v. Brazeau, 191 Ill. 117, Cichowicz v. International Packing Co. 206 id. 346, and McCormick Harvesting Machine Co. v. Zakzewski, 220 id. 522. We think these cases adverse to the contention of appellee last above stated.
As no recovery could be had under the proof as to the first and second counts of the declaration, for the reason that the undisputed evidence shows that appellee assumed the risk of injury from the negligence charged by those counts, and as there was a material variance between the third count and the proof offered in support thereof, the judgment of the circuit court should not be allowed to stand. At the close of all the evidence, in the absence of an amendment to the third count of the narr. obviating the variance, a verdict for appellant should have been directed.
It is unnecessary to discuss the other questions presented by appellant's brief and argument.
The judgment of the Appellate Court and the judgment of the circuit court will be reversed and the cause will be remanded to the circuit court.
Reversed and remanded.
Farmer and VickErs, JJ., took no part in the decision of this case.