Lewis v. South San Francisco Yellow Cab Co.:
Author: Krista

Facts: The plaintiff, Ms. Lewis, went to the defendants’ cab company to contract a ride from the cab company to her home. She had previous acquaintance with the cab company, the driver, and a sailor whom she allowed to ride along.  The sailor was fooling around with her, kissing her and such, and the driver, instead of taking her home, took her to another place and told her to get out with the sailor.  She ran off in the dark, fell in a ditch, and broke her foot.

In her complaint, Ms. Lewis alleged that the cab driver drove the cab to a secluded spot, made improper suggestions and advances to the plaintiff, and so frightened her that she took off running into the night and broke her foot.

The facts did not support this claim. The driver had not made any sexual advances toward the plaintiff, and she was not injured through fear of an attack by the taxi-driver, but through desire to avoid the attentions of the friend she had invited to ride with her.

Procedure: The trial judge granted the defendants’ motion for a nonsuit, and plaintiff appeals.

Issue: whether there was any evidence to support the allegations of plaintiff’s complaint.

Rule: A party must recover, if at all, according to his pleadings, rather than upon some other different cause which may have been developed by the proof.  When there is material variance between the pleading and the facts, the defendant is entitled to a nonsuit. Unless plaintiff obtained leave to so amend his complaint as to conform to the proofs, the defendant may have his nonsuit, though the testimony was admitted without objection.

Holding: The court properly granted the nonsuit.

Reasoning: In this case, an entirely different set of facts constituting an entirely different cause of action from that pleaded appeared, and the plaintiff failed to request permission to amend her complaint to conform to the proof. Thus, the trial court was correct in granting a nonsuit.