United States Health & Accident Ins. v. Savage

SOMERVILLE; J. The complaint is in the Code form (Code 1907, p. 1196). This form, though simple and concise, requires a description of the policy sued on to the extent of its date and the term of its opera [235] tion. As averments descriptive of .tbe contract, these matters are material and essential, and a substantial variance between tbe averments of tbe complaint and tbe terms of tbe contract offered in evidence to support it is fatal to any recovery, if objection is seasonably made by tbe defendant in tbe trial court. Tbe variance here apparent was, under all tbe authorities, a fatal variance, and tbe trial court erred in refusing tbe peremptory instruction requested. — 9 Cyc. 750e; 31 Cyc. 710, 716; McLendon v. Godfrey, 3 Ala. 181; Jordan v. Rooney, 23 Ala. 758; May & Bell v. Miller, 27 Ala. 515; Mason v. Hall, 30 Ala. 599; Boylston v. Sherran, 31 Ala. 538; Gamble v. Kellum, 97 Ala. 677, 12 South. 82; U. S. H. & A. Co. v. Veitch, 161 Ala. 630, 50 South. 95. It is urged by counsel for appellee that tbe variance is avoided by tbe use of a videlicet in the-complaint. But as pointed out by Mr. Greenleaf: “A videlicet will not avoid a variance, or dispense with exact proof, in an allegation of a material matter.”- — 1 Greenl. on Ev. § 60, cited with approval in B. R. L. & P. Co. v. Lide, 177 Ala. 400, 58 South. 990, 991. Under tbe new rule of circuit court practice (rule 34, as adopted June 23, 1913 [175 Ala. p. xxi]), a variance is available to tbe opposite party only upon proper and seasonable objection to tbe alleged variant evidence. But under tbe former rule, which prevailed ivhen this case was tried the objection was sufficiently presented by an unexplained request for tbe affirmative charge to tbe jury.- — Adler v. Martin, 179 Ala. 97, 59 South. 597. Tbe judgment is reversed, and tbe cause is remanded. Reversed and remanded. Anderson, C. J., and McClellan and Sayre, JJ., concur.