50 Neb. 113 | Neb. | 1897
Rose, the defendant in error, recovered judgment against the plaintiff in error, Harshman, in the district court for Oass county on account of an alleged assault and battery. In the proceeding by means of 'which said judgment is presented to this court for review especial prominence is given to those assignments which challenge the sufficiency of the petition below'' as a basis for the recovery of other than the special damage therein alleged, to-wit, $8 expended for medical attendance in consequence of the assault charged. The petition assailed, vdiich is very brief, is here set out, omitting caption and formal parts: “On the 3d day of August, 1891, in Cass county, and state of Nebraska, he, the defendant, unlawfully made an assault upon the plaintiff and him, the said plaintiff, did then and there beat, wound, and ill treat by striking plaintiff several blows on the head with a pitchfork; that plaintiff thereby was wounded and is, and for a long time will be, sick, and has suffered and still suffers great bodily pain and discomfort from said wounds; that plaintiff was disabled thereby from attending to his business for more than two weeks thereafter; that in the treatment and necessary care of said wound he has been compelled to pay for physician’s services the sum of $8; that he has been injured in the premises in the sum of $1,000.” It is in an action for assault and battery necessary to specially allege such damages only as the law does not presume to be the necessary or usual consequence of the act complained of. (2 Greenleaf, Evidence, sec. 89; 1 Chitty, Pleading, p. 428; 1 Kinkead, Code Pleading, sec. 221; 2 Ency. of Pl. & Pr., 862.) Tested by the rule thus stated, the plaintiff below was entitled to recover for such physical and mental suffering as was the natural and proximate result of the wrong complained of, and was not restricted to the damage alleged. (American Water-Works Co. v. Dougherty, 37 Neb., 373.)
Judgment aeeiemed,