The courts have departed very far from the strictness of the old common-law doctrine of variance and now discourage claims based upon it, regarding them only where there is a disagreement between the allegations and the proof in some matter essential to the charge or claim. However, it remains true that the plaintiff's allegations are the measure of his right of recovery. This is necessary in order to maintain regularity in procedure, and it makes for just decisions that the plaintiff should not be allowed to recover for a cause which he had not fairly alleged in his pleading.
A pedestrian filed a case for damages against a retailer and its employee arising from the employee's negligence. The pedestrian's complaint alleged that she was injured as she walked past the retailer's store when the employee came out of the store with a ladder and struck her in the legs. At trial, evidence was submitted that the pedestrian's injuries occurred when the employee, carrying the ladder back into the store after a job, suddenly changed direction and swung the ladder around, striking the pedestrian in the legs. The court instructed the jury that the pedestrian had to prove the negligence alleged in the complaint and a verdict for the pedestrian could not depend upon proof of some act of negligence not alleged. The jury returned verdicts for both the retailer and the employee.
Was the instruction of the court to the jury proper?
The court found that the trial court did not err in instructing the jury because the plaintiff in her complaint made the conduct of the employee in coming out upon the sidewalk the very basis and essence of her claim. Under these circumstances a recovery based upon his negligence in swinging the ladder around as he proceeded toward the entrance of the store would be too great a variation from the pleadings and permit a recovery upon a cause of action not alleged.