172 Pa. Super. 537 | Pa. Super. Ct. | 1953
Opinion by
The complaint in this action of assumpsit brought by Erma C. Yorke alleged in substance that the defendant, Fred Lee, “forced” plaintiff to “give” him the sum of $100 a month from June 1, 1944 to December 1, 1945 “because of threats of bodily harm and personal violence and other illegal threats made to her by him.” It was further alleged that “at Christmas 1945” defendant “obtained” $200 “using similar threats”. Finally it was alleged that from March 1946 to December 1946 defendant “compelled” plaintiff to “give” him additional sums of money totalling $1450 “by the use of threats similar to those described . . . above”. An answer was filed denying the allegations of the complaint. The case was tried before a jury which returned a verdict for the plaintiff in the sum of $800, and after the defendant’s motion for a new trial was refused, he took this appeal.
The evidence adduced by the plaintiff to support the allegations of her complaint may be summarized as follows: She was married to William Lee Yorke, a Chinese, who, until his death on May 15, 1944, owned and operated a Chinese restaurant in Philadelphia, where the defendant, worked as a waiter and cook from May 1943 until the restaurant was temporarily closed on December 2, 1945.
Plaintiff testified that after her husband’s death and the closing of the restaurant she went to New
It would appear that plaintiff paid the defendant $100 in June of 1944, as noted above, and between that time and December of 1945 permitted him to with
With respect to the $200 which defendant is alleged to have “obtained” from plaintiff at Christmastime of 1945, she testified that “at Christmas of 1945 he [defendant] came in and said that I had to give him $200.00. When I told him no, he went to hit me. He pushed me.” When asked if she then gave him the money, she replied, “After a lot of argument, .1 gave it to him. I gave it to him after talking to Mr. Sowers”, her attorney.
Finally, plaintiff gave testimony intended to support her allegation that defendant compelled her to give him various sums of money in 1946 and 1947 by the use of “threats of bodily harm and personal violence and other illegal threats”. Plaintiff leased her restaurant to defendant and one Henry Hoesie for a term of three years commencing March 1, 1946. Plaintiff testified that she made this lease because defendant “scared” one Martin Chang “and another fellow”, prospective lessees, by stating to them that there would be a “tong war” if plaintiff leased to them. The rental was $325 for the premises and an additional $175 for
In our opinion, there is in the present case a material variance between the allegata and probata. The defendant properly raised the issue by objecting when the testimony not covered by the complaint was offered and by moving for a nonsuit, assigning the divergence as the reason. Kehres v. Stuempfle, 288 Pa. 534, 136 A. 794. The plaintiff had an opportunity to amend when the question of variance was raised, and since she chose not to do so, she is bound by the rule that allegata and probata must be in agreement. Higgins Lumber Co. v. Marucca, 159 Pa. Superior Ct. 405, 48 A. 2d 48; McDonough v. Munhall Borough, 331 Pa. 468, 200 A. 638.
It is to be recalled that the complaint alleged that the defendant “compelled” plaintiff to “give” him various sums of money at different times by the use of “threats of bodily harm and personal violence and other illegal threats”. The proof clearly at variance with this allegation is that with respect to the withholding of a part of the restaurant rent by defendant
The following language from the opinion of the Supreme Court in Aland v. P-G Publishing Co., 337 Pa.
Here the defendant went to trial on a complaint that he by threats had compelled the plaintiff to pay to him certain sums of money at certain times. The proof submitted by the plaintiff in support of her claim varied greatly and materially from the allegations of the claim. The defendant promptly and properly raised the question of variance between the allegata and probata and the plaintiff thus had her opportunity to amend but did not do so. Consequently, the defendant’s motion for a retrial of the case should prevail, •and this being our conclusion,, it is not necessary to discuss the other contentions — scope of the cross-examination of defendant and charge of the court — advanced by the defendant in support of his motion for a new trial.
Judgment reversed and new trial awarded.