Probst Construction Co. v. Foley

Mr. Justice Baker delivered the opinion of the court: At the close of plaintiff’s case the defendant moved the court to instruct the jury to find for the defendant, on the ground of a variance between the pleadings and evidence, and that the evidence introduced did not prove or tend to prove a cause of action against the defendant. The overruling of said motion is assigned for error. In order to raise the question of variance it was necessary for the defendant to indicate specifically the variance and point out in what it consisted, so as to enable the court to pass upon the question intelligently, and also to enable the plaintiff to so amend his pleading as to make it conform to the evidence. The defendant not having done this, but having charged a variance only in general terms, the objection must be considered as waived, and the question of variance cannot be raised here. St. Clair County Benev. Society v. Fietsam, 97 Ill. 474; Lake Shore and Michigan Southern Railway Co. v. Ward, 135 id. 511; Richelieu Hotel Co. v. Military Encampment Co. 140 id. 248; Murchie v. Peck Bros. & Co. 160 id. 175; Swift & Co. v. Madden, 165 id. 41. There was evidence that several of the arches of the roof, among them the one that gave way with the plaintiff, were improperly supported. This tended to prove the averment that the roof was not properly supported. A careful examination of the record satisfies us there was sufficient evidence to go to the jury upon the questions both of the negligence of the defendant and due care on the part of the plaintiff. Whether or not the evidence was sufficient to actually prove the case stated in the declaration is another question, and one which we can not review. That was a question of fact for the jury to determine, and having found a verdict for the plaintiff, and the judgment entered thereon having been affirmed by the Appellate Court, the facts in the case are settled adversely to the defendant. It follows that there was no error in overruling said motion. Complaint is made of the conduct of plaintiff’s counsel at the trial. While such conduct was improper and not to be approved of, still it was not of a sufficiently serious character to justify a reversal of the judgment. We find no error in the record, and the judgment of the Appellate Court will be affirmed. Judgment affirmed.