Scherer v. Otis Elevator Co.

Ostrander, C. J. (after stating the facts). The question, the only one debated in the briefs, is whether there was a fatal variance between the proof and the declaration. It is the contention of defendant, appellee; and was the view of the trial court, that the declaration alleges, not the absence of a guard, but the presence of a defective guard; that, consequently, testimony that there was no guard tended to prove no negligence of defendant alleged in the declaration. The provision of the statute relied upon by the plaintiff is: “All vats, saws, pans, planers, cogs, set-screws, gearing and machinery of every description shall be properly guarded when deemed necessary by the factory inspector.” Act No. 285, Pub. Acts 1909, § 15. Plaintiff, appellant, insists that the first allegation referred to in the foregoing statement is an allegation that the machine was not guarded. The reply which is made is that the averment relied upon is plainly not one that the planer (jointer) machine was not guarded, and is one that a knife was not guarded; that the averment must be read with the later averments of the declaration, and, when so read, it is clear that the averment is that the machine had a guard, and that the negligence alleged is the use of an inefficient, or defective, guard. Fair construction of the language of the declaration supports appellee’s contention. As has been pointed out, the declaration has but one count, the meaning of which must be gathered from all the language used. The pleader has averred a defective machine, independent of the guard, or want of a guard, and also a defective guard. This is the negligence averred. Neither averment is supported by testimony. It may be said that the legislation referred to requires an effective guard, and that an ineffective guard is no guard. This, we conceive, is the real theory of the declaration so far as a guard is concerned. It was testimony tending to support this theory that defendant was called [5] upon to meet. The testimony tends to support no such theory. The variance is fatal. 22 Enc. Pl. & Prac. p.527; Shanke v. Heater Co., 125 Mich. 346 (84 N. W. 283); Hoyt v. Garlock, 145 Mich. 632 (108 N. W. 1074); Wabash, etc., R. Co. v. Friedman, 146 Ill. 583 (30 N. E. 353, 34 N. E. 1111). The case of Hunter v. Township of Dwight, 157 Mich. 634, 640 (122 N. W. 267), relied upon by appellant, is plainly opposed to his contention here, since defendant is not apprised by the declaration that a mere breach of the statute duty to guard is relied upon. The judgment is affirmed. Bird, Brooke, Blair, and Stone, JJ'., concurred.