Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Pleadings Variance. For more information on pleadings see the pages on Wikipedia.

Pleadings Variance Statutes

See Va. Code § 8.01-377.

Pleadings Variance Cases

2010 Syed v. ZH Technologies, 280 Va. 58, 694 S.E.2d 625.
Plaintiff pled beach of fiduciary duty by defendant as employee. Defendant denied he was an employee. To allow plaintiff to proceed on breach of fiduciary duty against defendant as a partner was fundamentally unfair and is reversed.

1994 Hensley v. Dryer, 247 Va. 25, 439 S.E.2d 372.
Purchaser sued seller alleging fraud in regards to real estate transaction and seeking rescission. Trial court ruled there was no fraud but found there was mutual mistake of fact and concluded under Va. Code § 8.01-377 that this variance did not prejudice the seller. Supreme Court overruled and held that judgment may not be based upon facts not alleged or upon a right not pled. Trial court has some discretion in this regard, but only on condition that no prejudice results. In this case Supreme Court found potential prejudice since seller was denied opportunity to present evidence in support of defense that relief will be denied upon mutual mistake of fact when a written instrument is involved and the equities are equal. Bill of complaint dismissed.

1989 Infant C. v. Boy Scouts of Am., 239 Va. 572, 391 S.E.2d 322.
Trial court ruled that plaintiff pled intentional tort only and therefore could not submit issue to jury on negligence issue. Supreme Court ruled that pleading alleged willful and wanton misconduct by defendant, which means he intended the act but not necessarily the harm. Proof was consistent with this and therefore case should have been submitted to jury on that issue.

1983 Graves v. National Cellulose Corp., 226 Va. 164, 306 S.E.2d 898.
If defendant is not surprised by plaintiff’s proof, variance between pleadings and proof cannot serve to overturn jury verdict based on all evidence. In this case there was no variance because pleading of negligent application of insulation material encompassed negligent setting up with insulation equipment, latter having been what was actually proved at trial.

1981 Lansing Supply Co. v. Royal Alum., 221 Va. 1139, 277 S.E.2d 228.
Trial court may not base its judgment on facts not alleged or on right not pleaded.

1976 Caputo v. Holt, 217 Va. 302, 228 S.E.2d 134.
When there is no surprise to party invoking rule of variance between pleadings and proof, there is no good reason for enforcing rule.

1971 Simmers v. DePoy, 212 Va. 447, 184 S.E.2d 776.
Allegations in pleadings which are immaterial to real issues in case cannot form basis of claim that there is fatal variance between allegation and proof.

1968 Roenke v. Virginia Farm Bur. Ins. Co., 209 Va. 128, 161 S.E.2d 704.
Pleadings variance. Trial court excluded evidence because evidence offered differed from pleadings. Supreme Court found no error in this exclusion.

1966 Carolina, C. & O.R.R. v. Mullins, 207 Va. 207, 148 S.E.2d 752.
Pleadings variance. Only claim for liability asserted was negligence and thus is only one that can be relied on.

1963 Bolling v. GMAC, 204 Va 4, 129 S.E.2d 54.
Pleadings variance. Impermissible to allege one case and to prove another.

1949 Ransone v. Pankey, 189 Va. 200, 52 S.E.2d 97.
Variance between pleadings and proof in this case was not of such nature as to preclude presentation of evidence in question; portions of pleadings referred to contained conclusions of law.

1948 Burruss v. Suddith, 187 Va. 473, 47 S.E.2d 546.
Pleadings variance. There was variance between pleadings and proof. Defendant failed to object at trial. There was no prejudice to defendant. Held: no reversible error.

1944 Shearin v. VEPCO, 182 Va. 573, 229 S.E.2d 841.
Pleadings variance. Defendant objected to instruction in that it did not conform to charge of negligence stated in initial pleadings. Technical refinements of common law pleadings are no longer required.