192 Mo. App. 502 | Mo. Ct. App. | 1916
Plaintiff boarded one of the cars of the Metropolitan Street Railway Company then being operated by the defendant receivers. ■ Before she had time to become seated, so the petition alleges, the
Under the foregoing allegation the plaintiff was permitted to introduce evidence relating to a paralysis of her left hand, a partial paralysis of her right, and to an emaciation or atrophy of the muscles of her arm and shoulder. The question presented by the appeal is, was evidence of these conditions admissible under the above quoted allegation?
The distinction between general damages and special damages is thus stated in 8 Am. and Eng. Ency. of Law (2 Ed.), 542 and 543:
“'General damages are those which necessarily and by implication of law result from the act or de fault complained of.”
“Special damages, as contradistinguished from general damagés, have been defined as those which are the natural but not the necessary result of the act complained of.”
And the general rule for pleading damages is thus stated in 13th Cyc. 176:
“If the damages sought to be recovered are those known as special damages, that is, those of an unusual and extraordinary nature, and not the common consequence of the wrong complained of or implied by law, it is necessary in order to prevent surprise to the defendant that the declaration state specifically and in detail the damages sought to be recovered.”
At the time this case was tried, the cases of Gurley v. Missouri Pacific Railway, 122 Mo. 141, and of
It will be observed that the paralysis and emaciation or atrophy testified to are not “bodily injuries” received at the time of the fall but are conditions resulting from the bodily injuries received at that
“If the plaintiff proposed to rely upon conditions and diseases growing out of the alleged bodily injuries, then specific pleading thereof should be required, or the evidence excluded. ’ ’
His opinion in this case was adopted as the opinion of the court en Banc. And in his dissenting opinion in the Moore case (226 Mo. l. c. 710) Judge Graves said:
“It is a well-known fact that from certain kinds of physical injuries, certain results will thereafter inevitably follow. In other words, that such injuries will naturally produce certain conditions and diseases. In such case an allegation in the petition of the injury inflicted would justify proof of such conditions and diseases as would of necessity follow the injury and as to such conditions and diseases, the defendant must come prepared to defend. But, on the other hand there are other physical injuries which may or may not produce resulting conditions or diseases. For instance, an injury to the lung might superinduce pneumonia, but not necessarily so. An injury to the nervous system might produce blindness, but not necessarily so. These conditions or diseases last mentioned may as readily come from other causes as from the physical injury or injuries. In such case, the petition should be specific, to the end that the defendant could come prepared to meet the issues and show that the condition or disease was not caused by the physical injury. This he cannot do if the unpleaded conditions, or diseases are sprung upon him for the first time at the trial.”
And further on in the same opinion he says (page 711):
“I am of opinion that if a particular injury is sued for in general terms, and if from that injury cer*506 tain, results, conditions, or diseases will inevitably follow, then proof can be made under the general alie-' gation, because defendant must come prepared to defend against that physical injury and all of its inevitable consequences, conditions and diseases. But on the other hand, if in general terms, a specific physical injury is pleaded, and such injury may or may not produce certain subsequent conditions or diseases, then in my judgment the petition should aver the resulting conditions or diseases, before proof thereof should be admitted. This to the end that fairness" may reign in the trial of causes. This to the end that defendants may know what they are required to meet before having it sprung upon them during the trial.”
These remarks are quoted with approval in the Hall case, page 373, and consequently now represent the views of the Supreme Court.
Plaintiff now contends that the evidence of paralysis and atrophy was within the pleaded issues since there was an allegation that by reason of the injuries to the back, spine, etc., her strength, activity and vitality were impaired. But á reading of the record clearly discloses that it was not offered as evidencing loss of activity or vitality nor was it necessary to be proved in order to establish such impairment. It was offered separately and distinct from evidence in regard to that, and the form of the questions asked show that the express purpose was to prove conditions resulting from the pleaded injury to the spine. Moreover, these conditions were “those of an unusual and extraordinary nature, and not the common consequence of the wrong complained of,” and were such as might have arisen from some' other cause, i. e. the age of the defendant, she being eighty-two years old. This being so, the defendant would not be apprised of such unusual and extraordinary results by the general allegation of the petition, and, if the evidence is to be held
Again, the allegation as to impairment of activity, strength and vitality would be taken to refer to the injuries alleged and not as a general statement including something not alleged. And, therefore, the general allegation of impairment of the strength, activity and vitality, is not such a general allegation as includes paralysis, emaciation, or atrophy. Certainly a general allegation of lessened activity could not, by any effort of the imagination, be stretched so as to include emaciation or atrophy.
Plaintiff makes the point that the evidence, if not admissible to show conditions or to prove damages, was admissible to prove that the spine was injured. In other words, to argue from effect back to cause, these conditions were objective symptoms which showed an injury to the spine, and the evidence could be regarded as coming within the purview of the remarks made by Gantt, J., in reference to objective symptoms in Reardon, Admr. v. St. Louis, etc. R. Co., 215 Mo. 105, l. c. 135. Conceding merely for the sake of the argument (but without deciding), that the evidence would be admissible, even if such conditions were not pleaded, where the injury alleged could not be established otherwise than by showing results which could be traced only to the injury pleaded, still the point cannot avail plaintiff anything: First, because there were other objective manifestations of injury to plaintiff’s spine, and proof thereof was properly made, so that there was no necessity of resorting to nnpleaded results in order to argue from them back to an otherwise undiscoverable cause; Second, because, the evidence, when plaintiff finally succeeded in getting it
The case was not tried until some time after the petition was filed. Plaintiff admits that the conditions revealed by the evidence to which objection is made, did not arise until some time after the filing of the petition. One of defendant’s physicians examined plaintiff about two weeks after the injury, and, according to his evidence, there were merely some bruises on her right and left hips and knee and the skin was scarified from the knee to the ankle, but there was nothing that would not heal readily in a short time and nothing to indicate that such' conditions as are now complained of would arise. The instructions certainly authorized the jury to consider the paralysis and atrophy in estimating the damages, because they told the jury that the verdict, if for plaintiff, should be in such amount “as you may find from the evidence will reasonably compensate the plaintiff for such injuries to her back and spine, body and limbs, if any, as you may find to have naturally resulted from and followed directly from and as the natural result reasonably to be expectéd from such injuries, if any,” etc.
We think the evidence objected to related to results and conditions which should have been specially pleaded if plaintiff desired to prove them, since in that way only would the defendant be apprised of the fact that plaintiff was going to charge defendant with having caused them. As we said in Cooley v. Railroad, supra:
“It would seem that the above is a safe and excellent rule to follow in order to determine whether certain evidence is admissible under a pleading of general damages. That is, if the results are the natural and necessary consequences of the wrong pleaded, then*509 the evidence is admissible; but if they are the natural, bnt not necessary consequences of.such wrong, then evidence thereof is not admissible. This would work no hardship on the plaintiff since he can either plead them, or at the trial, amend his petition so as to include any “natural but not.necessary” results — i. e., special damages — and thus give the defendant notice of what he is called upon to meet.”
At any rate such is the rule now announced by the Supreme Court if we correctly understand the scope and meaning of the decision in the Hall case.
Plaintiff in her brief intimates that if any error has been committed by the admission of such evidence, the same can be cured by remittitur. But, as one of our number asked at the oral argument, who can determine how much of the damages awarded were for the conditions which were shown to have arisen afterward but which were-not pleaded?
Our view of the case makes it unnecessary to go into the question of whether or not the verdict is excessive.
For the reasons set forth in the foregoing opinion, the judgment is reversed and the cause is remanded for a new trial.
