Chicago, Terre Haute & Southeastern Railway Co. v. Collins

(after making the foregoing statement) :

The first error assigned has been expressly waived. Under the second assignment, the appellant contends that a recovery is absolutely inhibited by the old rule that a litigant will not be permitted to recover on any “theory” other than the one stated in his pleading. To sustain the contention, counsel proceed to ' put their own construction upon the complaint. They say that the plain “theory” of the complaint is that the track was originally constructed by the appellant; and that the original construction of the track was wrongful. They insist that the…