The claim of appellant that the cause of action set forth in the complaint was for trespass to real estate; that the allegations to the effect that appellant was guilty of physically violating the person of respondent, laying himself liable to a civil action for assault and battery, were stated as aggravating characteristics of such trespass,
Conceding for the moment that the pleader purposed declaring in trespass to realty, the proof was undisputed that, if the assault and battery alleged to have occurred happened, there was a violation of respondent’s possession of the premises when the deed was perpetrated. The situation is thus ruled by Ford v. Schliessman,
In view of the foregoing the finding of the jury that re■spondent told the truth as to appellant’s conduct, in effect, ■found that he committed the trespass which is now claimed was the real gravamen of the cause of action set forth in the complaint.
Aside from the foregoing it is considered respondent made •out a cause of action disclosed by the complaint. , It is npt the law, under our liberal rules of pleading and the statutory rule that the court will, “in every stage of an action, disregard any error or defect in the pleadings or proceedings which «hall not affect the substantial rights of the adverse party; .and no judgment shall be reversed or affected by reason of such error or defect,” that, in all circumstances, a recovery consistent with the evidence and facts pleaded, but not with the cause of action the pleader had in mind in drafting his complaint, can be successfully challenged after verdict. If facts are stated constituting a good cause of action, though not the one the pleader intended, th¿ pleading is good as .against a general, demurrer. Morse v. Gilman,
In harmony with the foregoing rule, if a good cause of action is established upon a trial and all controversies in reference to the matter are fully tried without objection and such cause is within the jurisdiction of the court and might-have been but was not fully pleaded or was not the particular cause of action the pleader had in mind at the outset, though the facts are fairly stated, the complaint may be amended to-correspond with the cause proved either before or after verdict, saving the substantial rights of the adverse party or, if' need be to sustain the judgment, it will, on appeal, be deemed amended in accordance with the judgment. Hopkins v. C., M. & St. P. R. Co.
This is very unlike Joseph Dessert L. Co. v. Wadleigh,
In tbe light of tbe very liberal rules for testing tbe sufficiency of pleadings and proceedings wbicb have been declared in recent years and tbe progressive tendency to broaden the-judicial vision as to the scope of sec. 2829, Stats. (1898),. aforesaid, tbe criticism in Joseph Dessert L. Co. v. Wadleigh, supra, would hardly be made today. Tbe general spirit of' tbe decision as regards essentiality of technical accuracy in pleadings and necessity for a party to stand or fall, under all circumstances, by tbe particular cause of action be intended to plead, is not in strict harmony with tbe later-day expressions and decisions. This does not impair tbe decision off that case but only softens somewhat tbe logic of tbe discussion. If there, upon tbe motion for a nonsuit, tbe complaint bad been amended in accordance with tbe evidence, savingtbe defendant from prejudice, if necessary, by proper terms, tbe ruling might' have been sustained, or bad tbe sufficiency of tbe case made by tbe evidence not been challenged till after; verdict, as in this case, tbe variance would,'doubtless, have been regarded as nonprejudicial, if tbe issues underlying tbe recovery were fully tried, or there was full opportunity for tbe adverse party to try them.
Tbe claim made that tbe damages found by tbe jury are excessive has been examined without discovering any warrant for disturbing tbe result. , '
By the Court. — Judgment affirmed;