Ross v. Preferred Accident Insurance

28 Haw. 404, 1925 Haw. LEXIS 23

• Court: Hawaii Supreme Court
• Decided: May 14, 1925
• Docket: No. 1548.
• Status: Published

Opinions

OPINION OF THE COURT BY

PERRY, J.

(Peters, C. J., dissenting.)

This is an action brought by the beneficiary named in an accident insurance policy for the amount of the insurance. The plaintiff, who was the widow of the insured, set forth in her declaration the corporate capacity of the defendant insurance company, its lawful authority to carry on in this Territory the business of accident insurance and the issuance on December 15, 1906, by the defendant of a policy insuring her husband with relation to accidents in the sum of $7500, if he should continue to pay the premiums mentioned in the policy for six years after its date; and further set forth that her husband died on September 27, 1921; that all the premiums payable under the policy were duly paid by him during his lifetime; that at the time of his death the policy was in full force and effect and that her husband in his lifetime and the plaintiff after his death had each duly performed all of the conditions of the policy on their part to be kept and performed, with the exception of certain terms relating to notice and proof of death which, as the plaintiff claimed, had been waived by the defendant. She also alleged that it was the provision of the policy that the amount of insurance named therein was to be paid by the defendant “in the event of death” (of the insured) “resulting directly, independently and exclusively of any and all other cause or causes from bodily injury effected solely through external, violent and accidental means;” “that on or about the 21st day of September, 1921, and while said policy was in full force and effect, said Harvey L. Ross” (the insured) “received a bodily injury solely through external, violent and accidental means; to-wit: bruises and contusions caused by the accidental overturning of an automobile driven by the said Harvey L. Ross, which said injury caused the death of the said Harvey L. Ross within ninety days thereafter; to-wit, on the 27th day of September, 1921; and that his said death resulted directly from said accident, independently and exclusively of all other causes.” There is no other allegation in the declaration concerning the nature of the accident which is claimed to have caused the death of the insured.

The defendant filed a motion for a bill of particulars asking that the plaintiff be required to designate (1) “the date and time of day of the accident alleged to have taken place as set forth in said complaint” and (2) “the place where said alleged accident took place,” and this motion was granted to the extent of requiring the plaintiff to “furnish to the defendant a bill of particulars setting forth with particularity the place where the alleged accident took place set forth and described in plaintiff’s complaint.” In the plaintiff’s bill of particulars filed in compliance with this order it was alleged “that said accident more fully described and set forth in plaintiff’s bill of complaint herein, took place and happened on the Island of Oahu, Territory of Hawaii, and while plaintiff’s decedent was driving said automobile from Honolulu to Kahuku, and said accident happened in the district of Koolaupoko on said Island of Oahu as aforesaid.” Thereafter the defendant filed an answer in which it denied “the truth of each and every allegation therein contained.” The cause was tried before a jury which rendered a verdict in favor of the plaintiff in the sum of $7500 and judgment was entered accordingly. An exception was noted to the verdict, at the time of its rendition, on the ground that “it is contrary to the law, contrary to the evidence and contrary to the weight of the evidence” and notice was given of a motion for a new trial, which motion was later presented. The case comes to this court upon a writ of error.

There are nineteen assignments of error, some relating to rulings on- evidence, some to the denial of a motion for a directed verdict, one to the refusal of an instruction requested by the defendant “that there is no evidence of an accident to insured as alleged in plaintiff’s complaint and bill of particulars,” others to other rulings upon instructions given and requested and others to the correctness of the verdict and the judgment.

One of the questions presented by these assignments is whether evidence was adduced which was sufficient as a matter of law to support a finding by the jury that there was an overturning of the automobile in which the insured was riding.

It is undoubtedly the law that the jury is the sole judge of the facts aud that this court cauuot on exceptions or error pass upon the credibility of the witnesses or the weight of the evidence; but it is equally well settled in this jurisdiction that it is a question of law, within the province of this court to decide, whether there Avas before the jury in any given case evidence which was legally sufficient to support the verdict or to justify any particular finding of fact, that a mere scintilla of evidence is not sufficient to support a verdict and that there must be some substantial evidence in order to justify this court in sustaining a verdict or finding. “Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would Avarrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. Decided cases may be found where it is held that if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to wit, that before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is -literally no evidence, but whether there is any upon which a jury can properly proceed to find, a verdict for the party producing it, upon whom the burden of proof is imposed.” Commissioners v. Clark, 94 U. S. 278, 284, quoted with approval in Kamalu v. Lovell, 5 Haw. 62, 64 (1883). “The evidence relied upon by the plaintiff in this matter is, in our opinion, so very slight and so very unsatisfactory that it is insufficient to sustain the verdict. The evidence of adverse possession, on the other hand, is strong and convincing. In so holding we are not unmindful of the rule, repeatedly laid down in former cases, that a verdict cannot be set aside where there is sufficient evidence to sustain it, but a mere scintilla of evidence is not sufficient for that purpose.” Smith v. Hamakua Mill Co., 14 Haw. 669, 677 (1903), the court again quoting with approval from Commissioners v. Clark, 94 U. S. 278. “To amount to more than a mere scintilla the evidence must be of a character sufficiently substantial, in view of all the circumstances of the case, to warrant the jury, as triers of the facts, in finding from it the fact to establish which the evidence was introduced.” Holstein v. Benedict, 22 Haw. 441, 445 (1915). To the same effect are Wo Sing & Co. v. Kwong Chong Wai Co., 16 Haw. 17, 21 (1904) ; Richards v. Ontai, 19 Haw. 451, 458 (1909) ; Robinson v. H. R. T. & L. Co., 20 Haw. 426, 432; 467 (1911) ; Tyler v. Wise, 21 Haw. 148, 153 (1912); Scott v. Hawaiian Tobacco Plantation, 21 Haw. 493, 497 (1913).

In the case at bar there was evidence tending to establish the defense that, while on or about September 21, 1921, the date named in the declaration, the insured drove in his automobile from Honolulu to Kahuku through the district of Koolaupoko, no overturning of the machine or other accident with the’ automobile occurred and also evidence tending to show that, immediately prior to the automobile trip in question, the insured was ill and complained of having the pleurisy and took medicine therefor; but upon this inquiry that evidence must be wholly disregarded. For present purposes regard must be'had solely to the evidence, and to all of the evidence, which tended to show that the automobile was overturned. The following is a statement of the evidence admitted at the trial and favorable .to the plaintiff’s claim:

The insured was a physician, practising at the time in the district of Kahuku, at the northwestern end of this island, and perhaps in neighboring districts. Several witnesses, including relatives of his, a physician and others, testified that they saw the insured on the day next preceding the date of the alleged automobile accident and that, aside from the ordinary effects of the extraction of a tooth, he appeared to be in good health and also that he had no cough. A Japanese nurse employed at a hospital at Kahuku testified that, on or about September 19 or 20, Dr. Eoss arrived at the hospital at Kahuku about 3 p. m. in his automobile upon his return from Honolulu and that he had started for Honolulu in his automobile the day before; that at about 8 p. m. of the day of his return to Kahuku Dr. Eoss called him to his home saying that he was in trouble; that upon the witness’ arrival at the doctor’s home the latter asked him to heat some medicine and put it on his right arm; that the right arm was “purplish and red;” that the right side of his chest was “reddish color” in an area of about ten inches by six inches; that the doctor said that his “foot was bad, but we didn’t put any medicine-on it;” that “he walked as though he was in pain;” that “when I moved his arm he said it was in pain;” that, “I stayed with him about three hours that night;” that “I heated and applied the medicine and changed it during that three. hours;” that his face was. “unnatural and sickly in appearance;” that, when he returned in the auto about 3 p. m. that day the auto “was dirty, a great deal of dirt about it, red dirt, it looked as though it had been used and that there had been dirt and dust come on it;” that the witness “next saw him after noon of the next day” and that the doctor was then still in bed; that the second day “I put on no more liniments or lotions;” that the second day “his face looked worse and flushed but I cannot say whether he had a fever then;” that the second day the doctor “could not move his body freely and the color of his face, his general appearance was of a sick personthat the second day and thereafter the doctor “coughed and spit blood;” that the witness did not see the doctor’s body the second day; that on Friday (the doctor’s return from Honolulu having been either on the Monday or the Wednesday preceding, according to the witness) “he coughed and spit blood, he was bluish black on the right arm and right chest and his breathing was fast;” that on Friday “his back was red but I think that was because he was lying on it;” that he “coughed blood” every day; that on Friday the doctor “had the face of a sick person, bloodless in color and white;” that on Friday the witness saw him “shivering and shaking” as though he was having a chill; that the last time the doctor came into town (meaning, it may be assumed, the day before the date of the alleged accident) “he said that the road by the pali was bad but irrespective of that he liked to come that way;” that “when I changed the bedclothes he said it hurts,” the witness indicating the right arm and right chest; that on the night when the doctor first called the witness to help him the witness “saAV his navy blue coat and pants in a heap on the floor as though he had kicked them off” and that the witness “paid no particular attention to their condition, other than the dirt;” that these clothes “were dirty with dirt;” that “the last time he went to town he had those same clothes on;” that when the doctor started for Waialua (meaning when later he was taken there by Dr. Wood) “the color of his body was very bad, his body looked impoverished and discolored on his arm and side” and that “he was hardly able to walk to the machine.”

Dr. Wood, practising physician of Waialua, about fifteen miles distant from Kahuku, was called to attend Dr. Ross on the Wednesday preceding his death. He testified that lie found the patient “ill in bed, suffering considerable pain, at that time suffering from pleurisy with a slight lung involvement; that there were a number of bruises and contusions over his chest and arms; that they were not particularly deep,” “they were bruises though which showed the usual characteristics of tenderness, swelling, discoloration, black and blue;” that, other than the chest, “the rest of his body was practically free from deep bruises, there were marks of contusions but I did not regard them as particularly serious at that time;” that there was “temperature, pain, accentuated on breathing, the condition generally known as acute pleurisy;” that he did not see the patient again for three days when on Sunday afternoon he “received a hurry-up call,” telephoned for another surgeon and with him called on Dr. Boss; that the patient at that time was “a very sick man, not clear in his statements, and temperature very high;” that at that time “the discoloration was much more marked and his legs, his back and his arms were bruised.” Dr. Wood took the insured to his house at Waialua on that Sunday and on the next day secured a trained attendant to help care for him; there were some slight symptoms of the “kidneys not doing their work properly.” On the following Wednesday morning the insured died. Dr. Wood’s testimony was that the immediate cause of death was pneumonia.

The undertaker who attended to the final disposition of the remains of the insured testified that the chest was “kind of dark, kind of blue, also one side of his body, near right arm and his right leg;” that “it was fading to kind of yellowish;” that the body when brought in was clothed in a blue suit; that the suit “was soiled on the right side a little; the arm, I think, was torn by the elbow here and the right leg was a little bit torn;” that he advised having the remains clothed in another suit and that this was done.

Another witness, Cecil Arthur Rickard, testified that he saw the dead body; that the “right leg was bruised from thigh to knee;” that “he was bruised on his chest, about a size just to cover the whole chest here;” that the navy blue suit of clothes was in a dirty state, “all dirt on the side here dirt on the sides here and his pants were all dirty;” and that “it was torn to the knee, the trousers was, the right knee.”

In answer to hypothetical questions, several physicians testified that in their opinion the pneumonia which was the immediate cause of the death “might have been caused” by a blow or impact or other force received from without and one physician gave it as. his direct opinion that the pneumonia was so caused. We deem it unnecessary, hoAvever, to examine the evidence on this subject with thoroughness, the question now under consideration being not whether there was sufficient evidence to support a finding that an automobile accident caused the pneumonia but whether there was sufficient evidence to support a-finding that there was an automobile accident.

There was no direct evidence whatever that any accident happened to the automobile on the trip in question or'on any other trip at or about that time. The foregoing recital contains substantially all that can possibly be claimed to be indirect or circumstantial evidence tending to show that fact. In our opinion, if it is evidence at all upon that issue, it is not more than a mere scintilla and cannot possibly be held to justify a finding by the jury, even if all believed to be true, that there was an automobile accident as alleged in the declaration. The bruises and contusions, such as they were, contain in themselves no indication that they were suffered in the course of an automobile accident, So, also, the fact that the automobile arrived at Kahuku in a dirty condition, while it might conceivably, if there were other evidence in the case, be. regarded as to some extent corroborative of the claim of an accident of that nature, is nevertheless evidence so very slight that standing alone it cannot be regarded as sufficient to support a finding of the occurrence of an accident of that nature. It is matter of common knowledge that it is practically impossible to drive an automobile from Honolulu to Kahuku over the pali without having it arrive there in a dirty condition. It is an ordinary every-day occurrence for automobiles making that trip, of about thirty-seven or thirty-eight miles, to arrive in a dirty condition. Begarding the evidence adduced in the light most favorable to the claims of the plaintiff, in our opinion there is not more than a scintilla of evidence, if such there is, tending to show the. Occurrence of an automobile accident and a finding that there was such an accident cannot be sustained.

The further contention is advanced, however, that the allegation in the declaration that the accident which caused the death of the insured was the overturning of an automobile is unnecessary and constituted surplusage; that there was evidence sufficient to support a finding that the pneumonia was caused by an accidental, external injury and that, therefore, even though the particular nature of the accident does not appear from the evidence, the verdict must, nevertheless, be sustained.' In the view which we take of this contention, it is unnecessary to consider whether the evidence, which was adduced and which in substance is recited above, was sufficient as a matter of law to support a finding that there was an accident, whatever its nature, or was sufficient to show that the pneumonia which caused the death was traumatic in its nature, that is, was caused by a blow or impact or other force from without. So, also, for the same reason, it is unnecessary for us to consider whether a declaration in a case such as this in which it is alleged, substantially in the language of the insurance policy, that the death of the insured was caused solely by an external accident, the nature of which is to the plaintiff unknown and is therefore not set forth, would be good against a demurrer thereto or whether, if good against the demurrer, the plaintiff would be compellable to specify in a bill of particulars the nature of the accident. It may be assumed for the purposes of this opinion that such a declaration would be sustainable upon demurrer and that the plaintiff would not be compellable to specify in a bill of particulars the nature of the accident. Our disposition of the remainder of the case rests upon these assumptions.'

Pleadings are statements “in logical or legal form of the facts which constitute the plaintiff’s cause of action or the defendant’s ground of defense.” They are “the formal mode of alleging on record that which would be the support or the defense of the party in evidence. The pleadings are the allegations made by the parties to a civil or criminal case for the purpose of definitely presenting the issue to be tried and determined between them.” 22 A. & E. Ency. L. 837. They are “statements, in logical and legal form, of causes of action and grounds of defense, terminating in a single proposition affirmed on one side and denied on the other. They are intended to form the foundation of the proof to be submitted on the trial, and should advise the parties to an action what the opposite party relies upon either as a cause of action or defense or objection as the case may be.” 31 Cvc. 43, 44. “Pleadings are the allegations made by the parties, to a civil or criminal case, for the purpose of definitely presenting the issue to be tried and determined between them. The end proposed is to bring the matter of litigation to one or more points, simple and unambiguous.” 9 Ency. U. S. Rep. 422.

Probably when courts were first instituted oral pleadings would have been sufficient. In the absence, however, of waiver, there can be no doubt that, at this day in this jurisdiction, declarations, bills of particulars and answers in actions at law such as the one at bar are required to be wholly in writing. The object always is to arrive at a precise statement of the issues involved and to inform the court and the opposing party of the claims advanced and relied upon by the pleader.

“If the right of deciding absolutely and finally all matters in controversy between suitors were committed to a single tribunal, it might be left to collect the nature of the wrong complained of, and the remedy sought, from the allegations of the party ore tenus, or in any other manner it might choose to adopt. But the common law, which wisely commits the decision of questions of law to a court supposed to be learned in the law, and the decision of the facts to a jury, necessarily requires that the controversy, before it is submitted to the tribunal having jurisdiction of it, should be reduced to one or more integral propositions of law or fact; hence it is necessary that the parties should frame the allegations which they respectively make in support of their demand or defense into certain writings called pleadings. These should clearly, distinctly, and succinctly, state the nature of the wrong complained of, the remedy sought, and the defense set np. The end proposed is to bring the matter of litigation to one or more points, simple and unambiguous.” McFaul v. Ramsey, 61 U. S. 523, 524.

“The object of pleading is to concentrate the controversy upon the questions of fact and of law, which should control the result. The value of the system in the administration of justice can hardly be too highly estimated. The exclusion from the testimony of everything irrelevant and incompetent is not less important.” United States v. Gilmore, 74 U. S. 491, 494, 495.

“The office of pleading is .to inform the court and the parties of the facts in issue; the court, that it may declare the law, and the parties, that they may know what to meet by their proof.” Hill v. Mendenhall, 88 U. S. 453, 455.

Pleadings should be clear and unambiguous and must he so framed as not to mislead or deceive the opponent as to what the foundation or essence of the pleader’s claim is. If in a given instance a general allegation would have sufficed as matter of law and yet in the pleading a more specific statement is made of the grounds of defendant’s liability the pleader is confined to proof of the claim set forth if the additional specification is material and substantial and serves to identify the particular fact or cause of action or grounds of defense. The contrary would he true if the additional specification is of purely immaterial matter which would properly be regarded as surplusage.

“It is a rule of pleading, applicable to cases like the present, that the plaintiff must, in his declaration, state the nature of the defendant’s liability, and he must prove it as laid. 1 Chitty’s Pleading, 417. And, although this may be done by a general mode of allegation, yet if, instead of doing so, the plaintiff states the ground of the defendant’s liability with unnecessary particularity, he must prove it as laid. 1 Chitty’s Pleadings, 265; Stephens on Pleading, 85; 1 Greenleaf’s Evidence, sec. 65; 1 Starkie’s Evidence, 377.” Gridley v. Bloomington, 68 Ill. 47, 49.

“Undoubtedly, the rule is that the proofs must correspond with the allegations in the declaration, but the requirement in that behalf is fulfilled, if the substance of the declaration is proved. * * * Allegations of fact in the pleadings, affirmed on one side and denied on the other, must in general be tried by a jury, and the purpose of the rule which requires that the allegations and the proofs must correspond, is that the opposite party may be fairly apprised of the specific nature of the questions involved in the issue. Formerly, the rule in that respect was applied with great strictness, but the modern decisions are more liberal and reasonable.” Nash v. Towne, 72 U. S. 689, 698.

“The general rule is, that the allegations in the answer or plea and the proof must agree; and as there were no averments in the plea, to authorize the proof, it was properly rejected by the court.” Wilcox v. Hunt, 38 U. S. 376, 379.

“As a general rule issues should be confined to such matters as are affirmatively alleged on the one side and sufficiently denied on the other. But this rule will not be applied with undue strictness, and any controverted matter substantially within the pleadings may raise an issue. However, the court will not go entirely outside the pleadings in order to consider matters that cannot fairly be said to be within the issues, and a wholly different issue from the one indicated by the pleadings should not be submitted to the jury. It is not proper for the court to direct any matter of fact to be put in issue which is not written within the pleadings. A denial of any matter by one party will not create an issue unless the same matter has been alleged by the other party.” 31 Oyc. 673.

“A distinction has been recognized, however, between allegations which are both unnecessary and irrelevant, and those allegations, which, although unnecessary, are relevant. Thus it has been held that in a case where defendant’s liability may be stated in general terms, if plaintiff alleges such liability, with unnecessary fulness and particularity, he may be forced to prove the allegations as laid.” 31 Cyc. 676.

“In short, the plaintiff brought the defendant into court to answer to a" claim made upon an express contract, and upon that alone; that was the issue tried below. That issue was properly adjudicated, and, on familiar principles, we are prohibited from reversing the judgment upon the theory that if another issue had been presented and tried it might have resulted in favor of the plaintiff.” Kent v. Phenix Art Metal Co., 69 N. J. L. 532, 540.

“It is always safe, in approaching a question of this kind, to have regard to the pleadings in the case. Otherwise there is danger that the court and counsel may be drawn into discussions outside of the case actually presented. * * * It is a general rule that questions that are not within the issues presented by the pleadings may not be determined by the courts.” United States v. N. P. Ry. Co., 177 U. S. 435, 437, 438.

“The object in having written pleadings is that the parties may know what issues they are to meet. The appellants had no right to anticipate any defense not set up in the pleadings, and the court should not have submitted by his instruction any other issue, over their objections, to the jury.” Taylor v. Combs, 50 S. W. (Ky.) 64, 66.

“It is doubtless true that evidence must correspond with the allegations and be confined to the point in issue, and if in the examination of witnesses facts come out which, had they been alleged, would furnish ground of relief or defense, such facts must be disregarded unless they are warranted by the allegations of the pleadings. * * * The true object of pleading is and always has been to apprise the adverse party of the ground of action or defense, in order that he may be prepared to contest it, and may not be taken by surprise. * * * The rules of pleading will generally be found to be ancillary to or the logical sequence of this cardinal principle or rule.” Finley v. Quirk, 9 Minn. 179, 180, 185, 186, 187.

“Unnecessary allegations in a complaint require proof that would not have been essential if the pleading had been confined to the indispensable averments only, when such allegations constitute an essential part of the statement of the cause of action. If the cause of action is well stated without them, they may be disregarded as surplusage, and they do not affect the issue.” Commissioners v. Keene Bank, 108 Fed. 505, 515.

“There are cases where unnecessary particularity of averment will require a corresponding exactness in proof to avoid a variance. This is so whenever the unnecessary matter cannot he stricken out without destroying the right of action, or where it identifies the contract or fact averred. * * It seems to be settled, that in such a case, the allegation and the proof must correspond.” Dickensheets v. Kaufman, 28 Ind. 251, 253.

“The right of recovery is confined to the cause of action alleged in the declaration and there can be no recovery upon a cause of action however meritorious or satisfactorily proven that is substantially variant from the one alleged by the plaintiff.” Wilkinson v. R. R., 17 So. (Fla.) 71.

Bills of particulars are not parts of the pleadings to which they refer but are sometimes required by courts to be filed in order that the court and the opponents may be informed of the nature of the claim and in order to guard against surprise at the trial. When filed they operate to narrow the claim or the defense, as the case may be, and confine the pleader to evidence within the narrower issue thus presented. What has been said by judges and test-writers on this subject applies equally to proof of the claim as stated in the original pleading itself when it is not followed by a bill of particulars.

“The chief office of a bill of particulars is to amplify a pleading and more minutely specify the claim or defense set up. * * * Another object * * * is to prevent surprise on the trial, by furnishing that information which a reasonable man would require respecting the matters against which he is called upon to defend himself; and by thus limiting the generality of the pleading its effect is to confine the proof to the particulars specified therein.” 3 Ency. PI. & Pr. 519, 520.

“The general rule to be extracted from these analogous cases, is, that where, in the course of a suit, from any cause, a party is placed in such a situation, that justice cannot be done in the trial, without the aid of the information to be obtained by means of a specification or bill of particulars, the court, in virtue of the general authority to regulate the conduct of trials, has power to direct such information to be seasonably furnished, and in an authentic form; and that such an order may be effectual and accomplish the purpose intended by it, the party required to furnish a bill of particulars, must be confined to the particulars specified.” Commonwealth v. Snelling, 15 Pick. 321, 331.

“He who has furnished a bill of particulars * * * must be confined to the particulars he has specified, as closely and effectually as if they constituted essential allegations in a special declaration.” Commonwealth v. Giles, 1 Gray 466, 469.

“The object of requiring the plaintiff to file a bill of particulars is to inform the defendant of the claim he is called upon to defend against, and its effect is to limit and restrict the plaintiff, on the trial, to proof of the particular cause or causes of action therein mentioned.” Waidner v. Pauly, 141 Ill. 442, 445.

“The effect of furnishing the bill is to limit the evidence which the plaintiff may offer in support of his claim.” Chamberlain v. Loewenthal, 138 Cal. 47, 49.

“The claim of the plaintiff is restricted and his right to recover limited by his specification. * * * A bill of particulars should give as much information as a special declaration, so that the defense may know the real ground of the action.” Brown v. Rouillard, 102 Atl. (Me.) 701.

“The general rule appears to be that a substantial departure from the specifications of the bill of particulars will constitute a variance, although formal and technical variations will not do so. Variances will not be deemed material which have not misled the opposite party to his prejudice.” 31 Cyc. 704; 5701. The converse is equally true that variances will be deemed material which would mislead the opposite party to his prejudice.

“The question in applications of this kind” (for a bill of particulars) “is not what may have been the actual facts, nor the knowledge of the opposite party concerning them, but rather what the aggrieved party .claims them to be. What they claimed to be is the issue that is to be met and tried; and where the pleading is not specific in this regard a bill of particulars is properly ordered to point out such claims and thus make definite the issues to be litigated. * i:‘ * The purpose of such a bill is to amplify the pleadings and to indicate, with more particularity than is ordinarily required in a formal plea, the nature of the claim made, in order that surprise upon the trial may be avoided and that the issues may be more intelligently met.” Dwyer v. Slattery, 103 N. Y. S. 433, 434.

“Under the bill of particulars as filed, the plaintiff was not required to prepare to meet such, a defense.” Ritter v. Daniels, 47 Mich. 617, 618.

“The object of the practice for the production of bills of particulars is to obviate the uncertainty of general pleading. The intent is to secure such information as will enable the parties to make an intelligent preparation for trial, and to enter upon the investigation before the court or jury with an understanding as to what is really in controversy. The bill is often mentioned as being an amplification of the declaration or as entitled to be considered as a part of the pleading. But such expressions are metaphorical. The bill is never in strictness a component of the pleading. It may have the effect of a pleading in so far as it restricts the proof to what it contains.” Cicotte v. Wayne Co., 44 Mich. 173, 174, 175.

The rule confining the proof to the allegations must of course be applied reasonably and liberally. Applications of the rule are no longer characterized by extreme strictness. When the unnecessary specification is a matter purely immaterial, failure of proof is not fatal, —as for example in Wilson v. Codman’s Executor, 3 Cranch (U. S.) 193, in which proof of a “perfectly immaterial averment” was held unnecessary. In that case, however, the court intimated that if “that averment be descriptive of a written instrument, which, by being untruly described, may, by possibility, mislead the opposite party,” the proof should be confined to the averment as made. But if the matter specified is material and identifies the fact or the cause of action the proof is confined to the specification. In cases of negligence, for example, it has often been held that the proofs must conform to the particular act or omission alleged, even though broader allegations of negligence might have sufficed if they had been made.

“Where a party charges a specific act of negligence, he is concluded thereby and cannot recover upon matters not alleged.” Telle v. Ry. Co., 50 Kans. 455, 465.

“Having reached the conclusion that the acts of the defendant which are relied upon as a basis of recovery and which must be the proximate cause of the injury, must be alleged in the complaint, it follows as a necessary consequence that the evidence on the part of the plaintiff must be directed to the proof of those facts, and the instructions of the court must be confined to the allegations and proofs. It is the law arising upon these allegations and upon the evidence submitted to sustain them which the court is to expound to the jury. It is upon the facts thus ascertained and the law applicable to them which will authorize a verdict.” Woodward v. R. R. Co., 18 Ore. 289, 298, 299.

“The plaintiff must state the facts which constitute his cause of action. He cannot state one and prove another, nor, if he states none, can he supply the defects in his petition by evidence at the trial.” Field v. R. R. Co., 76 Mo. 614, 616, 617.

“The rule is very well established that, if the plaintiff specifically plead the act or acts constituting the defendant’s negligence, he cannot prove other and different act or acts for the purpose of substantiating his complaint. * * * The natural inquiry is, What was the cause of the injury? The complaint must answer the question in the first instance. We look to that because it is the means designed by our judicial system to apprise both the court and the parties of the precise subject of controversy.” R. R. Co. v. Hurley, 4 Ariz. 258, 260, 262.

“Our law requires a plaintiff plainly and distinctly to set forth his cause of action. And if one bring a suit based on one set of facts, it is obviously unfair to permit him to recover on another dropped out incidentally, and perhaps by way of defense. The right to amend is very broad and if parties desire to modify their cases, it is unfair to do so in a speech to the jury. Here was a definite act of negligence stated and relied on in the declaration. That other acts bearing that designation dropped out in the proof, did not make out the case, and the court should have charged as requested.” R. R. v. Oaks, 52 Ga. 410, 416.

“The negligence charged in the declaration was the alleged wrongful order of appellant’s servants, in obedience to which appellee claimed to have gone into a dangerous place. It was improper to tell the jury that if that charge was not sustained, appellee might recover if ‘the injury was caused by other negligence of the defendant.’ ” R. R. Co. v. Rayburn, 153 Ill. 290, 292, 293.

“Whether it was necessary for the plaintiff to aver that the defendant was guilty of negligence, and, if. so, Avhether it was necessary for him to aver in what the negligence consisted, we need not determine. HaAdng averred negligence, and in what the negligence consisted, we think that the plaintiff should not have been allowed to show other negligence. The defendant, it seems to us, was justified in assuming that the issue was not broader than that which the plaintiff, by his express averments, had seen fit to tender. If we should hold that the plaintiff might aver one kind of negligence and prove another, we should not only hold, in effect, that the averment had no significance, but that it was allowable for the plaintiff to so frame his petition that it should be well calculated to deceive and mislead the defendant.” Carter v. R. R. Co., 65 Ia. 287, 288. See also Ry. v. Grablin, 38 Neb. 90, 96.

Applying these principles to the case at bar, the plaintiff specified in the declaration that the alleged fatal injuries of the insured were caused by the overturning of an automobile. The only additional specification in the hill of particulars was of the place where the accident occurred and may he here disregarded because the failure of proof contended for by the defendant is not that concerning the place of the accident but is that relating to the more fundamental and more important issue as to whether any automobile accident whatever occurred. The defendant in preparing for trial and in presenting its evidence had a right to rely upon the specification in the declaration that the accident consisted in the overturning of the machine and was not required to search for or adduce any evidence tending to refute a claim that the accident was of some other nature, as, for example, that it was by drowning, by lightning, by falling out of a balloon or aeroplane, by falling off of a horse or by tumbling over a precipitous cliff. Indeed, any such evidence offered by way of defense would have been inadmissible under the pleadings as also would have been evidence offered by the plaintiff that the accident was of a nature other than that alleged. To hold, in the face of the declaration, that an accident of any nature, known or unknown, was provable by the plaintiff under the pleadings, would he to encourage and support pleadings well calculated to mislead the defendant as to the preparations necessary for trial and as to the search for evidence incumbent upon it. The plaintiff, of course, could have moved at the trial to amend the declaration so as to alter or broaden the issues; but this was not done. If it had been done the defendant could well have asked for a substantial delay in the trial in order to search for further evidence admissible under the altered or enlarged claim of the plaintiff. There was no duty upon the defendant to move for a nonsuit. It raised the question of the insufficiency of the evidence by its exception to the verdict and by ifs request for an instruction that “there is no evidence of an accident to insured as alleged in plaintiffs complaint and bill of particulars.” To adopt the suggestion made in the minority opinion that this court do now of its own motion order the declaration amended to conform to the proof by striking out all reference to the overturning of an automobile and thereupon do affirm the judgment and dismiss the writ of error, would be to adjudicate adversely to the defendant an issue (the most important one in such a case as this) upon which it has not been heard and of which it had no notice prior to the close of the trial. The defendant had a right to look to the plaintiff’s declaration for an answer to the question as to - what the plaintiff’s claim was. To this day the plaintiff has not claimed in her pleadings that the decedent died of an accident the nature of which was to the plaintiff unknown and the only claim that she has advanced is that he died of an accident which consisted in the overturning of an automobile. If hereafter the declaration shall be successfully amended so as to present the broader issue, the defendant will have an opportunity to search for and the right to present at the new trial evidence competent to disprove the occurrence of any accident of any nature whatsoever.- There has been as yet no such broader issue. At the new trial the evidence may properly, and naturally would, cover a much wider range than that which was adduced at the first trial.

Frear, Prosser, Anderson & Marx and A. E. Steadman for plaintiff in error. Thompson, Gathcart & Beebe and Marguerite K. Ash-ford for defendant in error.

The verdict is set aside and a new trial is granted.