Apex Smelting Co. v. Burns – Case Brief
Apex Smelting Co. v. Burns, 175 F.2d 978 (7th Cir. 1949), cert. denied, 338 U.S. 911, 70 S.Ct. 350, 94 L.Ed. 561 (1950).
Facts: Apex (P) entered into a contract with Burns (D) to provide uniformed armed guard security for Apex’s manufacturing plant. Burns provided the service for over a year when one of its guards deliberately started three fires in the plant. Apex sued Burns for $20,000 in damages and Burns moved to dismiss, alleging that Apex had not charge Burns with negligence or breach of contract. The court denied D’s motion and D filed an answer denying that the guard had acted within the scope of his employment. After the evidence was presented the court granted D’s motion for a directed verdict and P appealed. On appeal, P attempted to introduce a new a new theory of liability and charged D with breach of contract.
Issue: On appeal, may a party introduce a new theory of the case not pleaded or shown by proof at trial?
Holding and Rule: No. A party on appeal may not introduce a new theory of the case not pleaded or shown by proof at trial.
The power to review errors not raised on the record should be sparingly exercised only for the purpose of preventing a miscarriage of justice and in cases in which the public interest is directly and substantially involved. The court held that in this case P tried its case below on the negligence theory of liability and lost, and there was nothing in the situation which would justify reversing that decision so that plaintiff could try its case again on a different theory of liability.
Disposition: Affirmed.
See Ira S. Bushey & Sons, Inc. v. United States.