Cases on the Law of Damages / the Following Cases Have Been Printed

58 GEXERAL AND SPECIAL DAMAGES.

STEVENSON v. SMITH et al. shown with particularity. ' ' ' And whenever the damages sustained have not (28 Cal. 103.) necessarily accrued from the act complained April, 1865. Supreme Court of California. of, and consequently are not implied by law, Appeal from district court, Second judicial then, in order to prevent surprise on the de district, Tehama county. . fendant, which might otherwise ensue at the The facts are stated in the opinion of the trial, the plaintiff must in general state the Court. particular damage which he has sustained, or George Cadwalader, for appellant. W. S. he will not be permitted to give evidence o Long, for respondents. it. Thus in an action of trespass and false imprisonment, where the plaintiff offered to SAWYER, J. This is an action to recover give in evidence that during the imprison by the defendant ment stinted in his of food. a mare and colt eized he was allowance (sheriff of Tehama county) under an attach he was not permitted to do so, because the ment, and damages for their detention. fact was not, as it should have been, stated Plaintiff recovered the property. Plaintiff in the declaration; and in a similar action it moved for a new trial on the ground that cer was held that the plaintiff could not give ev tain special damages, claimed to have been 1 idencc of his health being injured, unless spe proved, were not found for him. The mo cially stated. So in trespass ‘for taking a 'T tion was denied, and the plaintiff appeals horse,‘ nothing can be given in evidence from the order denying a new trial. 'which is not expressed in the declaration, l The appellant claims that the evidence and if money was paid over in order to re shows that the animals were placed by de gain possession, such payment should be al fendants in fields where the pasturage was leged as special damages." Id. 390,. poor, and that in consequence of this act The complaint in this case only alleges the they lost iieh and depreciated in value to the ownership of the animals, the value, the extent of five hundred dollars. Also that the wrongful taking and detention, the demand, mare was a valuable brood mare, taken to and that plaintiff “has sustained damages by Tehama county for the purpose of being bred reason of such wrongful taking and detention to a particular horse, and that by reason of of said chattels and property in the sum of the taking and detention by defendants the one thousand dollars.“ breeding season was lost, whereby a further From these facts alone the law does not damage was shown to have been sustained imply either of the items of damages claimed to the amount of live hundred dollars, and to have been proved. The iirst item is not that the court should upon the evidence have even consequential upon any of the facts al found these items of damage for plaintiff. leged, but results from other acts of defend On examination of the pleadings, we find ants while the animals were in his posses no averments in the complaint that would an sion. And the second item of damages thorize the recovery of the items claimed. would not necessarily r. suit from a mere tak These damages are special, and the facts out ing and detention. These damages depend of which they arise must be averred, or they upon an extraordinary value of the animal cannot be recovered. for a particular purpose, and upon the spe Mr. Chitty says: “Damages are either gen cial use to which she was capable of being eral or special. General damages are such as applied. The facts out of which these items the law implies, or presumes to have accrued of special damages arise must be alleged in from the wrong complained of. Special dams ‘the complaint, or they cannot be recovered. ages are such as really took place, and are They are notaileged, and are, therefore, not not implied by law. and are either sup_er embraced within the issues to be tried. For \ added to g‘eneral damages arising from an this reason, if for no other, the plaintiff is act injurious in itself,—as when some partic not entitled to judgment for such items of ular damage arises from the uttering of damages. There was, then, no.error in not slanderous words actionable in themselves,— finding for plaintiff on these points. , or are such as arise from an act indifferent, The only other point made by appellant is. and not actionable in itself, but only injuri that the court erred in not giving plaintifl.’ ous in its consequences," etc. 1 Chit. Pl. 395. costs. There is no doubt in our minds that Again: “It does not appear necessary to the plaintiff was entitled to costs. But this state the former description of the damages error in no way affects the finding, and is not in the declaration. because presumptions of a ground for new trial. The error cannot, law are not in general to he pleaded or aver therefore, be corrected on appeal from an or red as facts, etc. "‘ ' ' But when the law der denying a new trial. The proper mode does not necessarily imply that the plaintiff of reviewing and correcting this error is on sustained the damages by the act complained appeal from the judgment, but no such ap of. it is essential to the validity of the dec peal has been taken in this case. laration that the resulting damage should be Judgment aiiirmed. GEl\,ERAL AND Sl.’.l:,CIAL DAMAGES. 59

WAB..KSH WESTERN RY. CO. v. FRIED and was accordingly then being carried, in MAN. the said train, from Kirksville to said Glen wood Junction," for reward, etc.; that it N. E. 353, 34 N. E. 1111, and 146 Ill. 583.) (30 became and was the duty of the said defend Supreme Court of Illinois. March 24, 1892. ant to properly and safely construct and maintain the track and road-bed of said rail Appeal from appellate court, First district. way, defendant so negligently con Action by Oscar J. Friedman against the but the and maintained the same that the Wabash Western Railway Company to recov structed same were not then safe for the use of pas er damages for personal injuries. Plaintiff sengers on defendant’s trains, “and the rails obtained judgment, which was aflirmed by of said track of said ralhoad were‘ then and the appellate court. Defendant appeals. Re there in bad repair and condition, and a cer versed.‘ tain rail in the said track had become broken & Fitzgerald, of George B. Burnett (Black by reason of the said negligence of the said Page, & Rosen counsel), for appellant. Eliel defendant, and thereby a certain car then be Duncan, counsel), for appellee. thal (J. W. of ing in the said train, and of a sort commonly called ’sleeping-cars,‘ was then and there CRAIG, This was an action brought by J. thrown with great force and violence from Oscar J. Friedman against the Wabash West . audcff thesaid track;"and plaintifl!,heingthen ern Railway Company to recover damages and there asleep and in the exercise of due for a personal injury received on the 1st day care0 was thrown from the berth in said car, of May, 1888, while plaintiff was a passenger in hich he was sleeping, with great force on the defendant,s line of road, running from and violence, across the car, and into the op Moberly, .\Io., to Ottumwa, Iowa. The fol posite berth, "by means whereof, then and lowing map shows .the line of defendant,s there, the spine and spinal column, including road. The accident which resulted in the in the spinal cord, of the said plaintiff. became jury complained of occurred in the state of and were greatly bruised, hurt, and injured, Missouri, between Kirksville and Glenwood and the said plaintiff suffered and incurred Junction, two stations indicated on the map. an injury of the kind known as ‘concussion " Ofiuuwg of the spine,’ wherelw he incurred expendi / tures, in endeavoring to be healed, amounting to $5,000, and became sick, lame, etc.,‘ “from .v thence hitherto," suffering great pain and be Bmomrizm ing prevented from attending to his business, and thereby losing profits, etc. In the con clusion of the declaration the plaintiff claimed damages amounting to $50,000. The defend ant pleaded the general issue, and on a trial before a jury the plaintifl! recovered $30,000. and the judgment, on appeal to the appellate court, was afiirmed. v it will be observed that in each count of the declaration the plaintiff, in stating where the relation of passenger and common carrier commenced, and where such relation existed between the plaintiff and the defendant. averred as follows: “And the said plaintiff. at said Kirksville, then became and was a passenger on a certain train of the said de fendant on the said railroad, to be carried, and was accordingly then being carried, in the said train, from Kirksville to said Glen wood Junction," for reward, etc. No evidence

$1‘. }. '5 was introduced on the trial that the plain Distance from Centrslia to Moberly, 24 miles. tiff became a passenger at Kirksville for Distance from Moberly to Ottumwa t31 miles. Glenwood Junction; but the plaintiff testified to Glenwood Junction Distance from Kirksvilie that he took the sleeper at Moberly to go in 25 miles. Ottumwa, and that he had a ticket which The declaration contained five counts, but read, from Moberly to Ottumwa, which he they are all substantially alike. In the second had purchased at Moberly in the fall of 1867' count, it is averred that defendant was on The testimony offered for the purpose of May 1, 1888, operating a railroad from Klrks proving the averment of the declaration was ville, Mo., to Gienwood Junction, Mo0 and objected to on the ground of a variance be operating trains for the conveyance of pas tween the evidence and the declaration; but sengers for reward; “and the said plaintiff, the court overruled the objection, and allow the at said Kirksville, then became and was a ed the evidence to be introduced. Upon passenger in a certain train of the said de question of variance the defendant asked fendant on the said railroad, to be carried, the court to instruct the jury as follows: 60 GENERAL AND SPECIAL DAMAGES.

“The averment in plaintiff,s declaration that fatal." Chit. Pl. 382. The same author also he became a passenger in the train of defend says: “In an action on the case founded on ant at Kirksville, Mo., to be carried from an express or implied contract, as against an said Kirksvilie to Glenwood Junction, is attorney, agent, carrier, innkeeper, or other material, and must be proved as alleged; bailee, for negligence, etc., the declaration and if the jury believe from the evidence must correctly state the contract or the par that said plaintiff did not at the time in ques ticular duty or consideration from which the tion become a passenger in said train of de liability results. and on which it is founded; fendant at said Kirksville, to be carried to and a variance in the description of a con said Glenwood Junction, then the jury will . tract, though in an action ex delicto, may be ‘ find for defendant, regardless of all other fatal, as in an action ex contractu. The dec questions in the case." But the court refused laration in such case usually begins with a to give the instruction as prayed, but quali statement of the particular profession or fied it by adding as follows, to-wit: “But if situation of the defendant and his retainer, it appear from the evidence that plaintiff was and consequent duty or liability. The decla a passenger on the train of the defendant ration will be defective if it does not show between the points mentioned, traveling from that by express contract or by implication defendant,s a point south of said Kirksville to a point of law, in respect to the particu beyond Glenwood Junction, then the aver lar character or situation, etc., stated by the ment in the plaintit’f’s declaration is sufli plaintiff, the defendant was bound to do or ciently made out." It may be said that the omit the act in reference to which he is question involved is a technical one, and charged." Chit. Pl. p. 38-}. hence not entitled to that consideration which It may, however, be said that the state a court should give to a question which ment in the declarationof the point from goes to the merits of an action. The plaintiff which and to which the plaintiff was be had the right, when the question was raised, ing carried was mere inducement, and need to amend his declaration, and thus obviate not be proved as laid. Upon a question of the difliculty; but he saw proper to take this character, Chitty on Pleading (page 292) another course, and he occupies no position says: “In general, however, every allega now to complain. should the rules of law tion in an inducement which is material, and that control in such cases be strictly en not impertinent and foreign to the cause, forced against him. But, while the ques and which, consequently, cannot be rejected tion involved may be regarded somewhat as urplusage, must be proved as alleged, technical, still it will be remembered that and a variance would be fatal; and conse the plaintiff is seeking to recover a large quently great attention to the facts is neces sum of money, and the defendant has the sary in framing the inducement, and care right to demand and insist that the grounds must be taken not to insert any unnecessary upon which the plaintiff claims a right of allegation." If, therefore, the allegation is recovery should be clearly and concisely to be regarded as inducement, it was neces stated, and that the case made on the declara sary to prove it as alleged. And at page 3.5 tion should be proven as laid. If a plaintiff the author further says: “It is also a rule may allege in his declaration one ground of that if a necessary inducement of the plain recovery, and on the trial prove another, a tiff,s right, etc., even in actions for torts, re- ldefendant never could be prepared for trial. late to and describe and be founded on a 'One great object of a declaration is to notify matter of contract. it is necessary to be ithe defendant of the nature and character strictly correct in stating uch contract; it \of the plaintiffs demand. so that he may be being matter of description. Thus, even in able to prepare for a defense; but if one case against a carrier, if the termini of the groundof action may be alleged, and another journey which was to be undertaken be mis proven, a declaration would be a delusion, stated, the variance will be fatal Here the and, instead of affording a defendant notice allegation in the inducement relates to mat of what he was called upon to meet, it would ter of description." Harris v. Rayner, 8 be a deception. Here the plaintiff claimed Pick. 541, isa case in point. The action was that the relation of passenger and common brought to recover for an injury sustained carrier existed between him and the defend by the oversetting of a stage-coach. The ant, and that the defendant owed him a duty plaintiff alleged in his declaration that he growing out of that relation. In speaking of paid defendants, for his passage in their a declaration in such a case Chltty on stage from Albany to Boston, $10. the usual Pleading says: “When the plaintiff,s right fee for said passage, and defendants, in con consists in an obligation on the defendant to sideration thereof, undertook and promised observe some particular duty, the declaration carefully to transport plaintiff in said pass must state the nature of such duty, which age from Albany to Boston. In support of ., we have seen may be founded either upon a the declar . "mintiff proved that he was contract between the parties or on the obli in a stag com Worcester to Boston, gation of law arising out of the defendant,s and that‘ he arrived at Boston the particular character or situation, and the de coach n . . c by the carelessness of the fendant must prove such duty as laid; and driver, . .as thereby injured. It was a variance will, as in actions on contract, be held t r .-vidence did not prove the GENERAL AND SPECIAL DAMAGES. 61

.contract set out in the declaration, and in the matter or thing averred with the matter passing upon this point the court said: “We or thing proved is fatal. In State v. Copp, think there was no sufllclent proof at the 15 N. ‘H. 212, it is said: “It is a most gen trial of the contract as alleged in the declara eral rule that no allegation which is descrip tion. The declaration alleges a contract on tive of the identity of that which is legally the part of the defendants to transport the essential to the claim or charge can be re plaintiff from Albany to Boston. The proof jected." See, also, 1 Phillips, Ev. pp. 709. was that the plaintiff rode in defendants‘ 710; Steph. Pl. p. 124, appendix. Here the stage from Worcester to Boston; and. al plaintiff was bound to allege that he was a though this is part of the route from Albany passenger on defendant,s train of cars for to Boston, yet it is part, also, of many other reward. This was material, and the further lines of travel. So that the contract as al averment that he became a passenger at leged remains without proof." In Tucker Kirksville for Glenwood Junction was descrip v. Cracklin, 2 Starkie, 385, and in Railroad tive of the identity of that which was legally & Banking Co. v. Tucker, 79 Ga. 128, 4 S. E. essential. It could not be rejected or disreL 5, actions were brought against carriers for garded. In conclusion, we think it plain, the loss of goods; and in each case it was under the authorities, that there was a vari held that a variance between the proof and ance between the proof and the declaration; allegation as to the termini of the carriage and the court erred in the admission of the was fatal. In Phillips, Ev. (volume 3, p. evidence, and in the modification of defend 268,) the author says: “The plaintiff 'will be ant,s instruction. nonsuited if the termini of the journey are On the trial the plaintiff was permitted, not correctly set forth." In Railroad Co. v. against the objection of the defendant, to Sutton, 53 Ill. 398, the point was made that introduce evidence tending to prove that an averment in the declaration of defend the plaintiff at the time of the injury was a.nt’s undertaking to convey the plaintiff receiving a compensation for his services from West Urbano. to Tolono is not sustained as a traveling salesman of $3,000 per annum. by proof of an undertaking to convey from The declaration contained no allegation of Champaign City to Tolono. In disposing of any special contract or engagement of the the question of variance, it is said: “It plaintiff with any person under which he would appear from the testimony that West might earn money for his services. In Rail Urbana and Champaign City are one and the way Co. v. Klauber, 9 Ill. App. 613, in dis same place; consequently, there was no vari cussing a question of this character it is once." The averment in plaintiff’s declara said: “Neither of these allegations points tion that he became and was a passenger at to any damages growing out of or depending Klrksville, to be carried to Glenwood Junc upon the peculiar circumstances or business tion, for reward, was, in effect, a statement of the defendant. In Tomlinson v. Derby, that he took the defendant,s train at Kirks 43 Conn. 562, the plaintiff was injured by ville for Glenwood Junction, and that he had means of a defective highway, and his allega paid or was ready to pay his fare from one tion was that he was thereby ‘prevented from point to the other when called upon, where transacting his ordinary business;’ and it upon there was an implied contract on was held that, under such allegation, he the part of the railway company to safely could not show that he was earning $100 a .carry him from one point to the other. We month in carting and sawing timber. So, think it plain that the averment in plaintiff’s in Taylor v. Munroe, 43 Conn. 36, under a declaration was not sustained by proof that similar allegation, it was held that the plain he became a passenger at .\ioberly for Ot tiff could not show that she was a button tumwa. It may be true that plaintiff stat maker, and what wages she earned in that .ed more in his declaration than he might business. In City of Chicago v. O,Brennan, have stated; that he might have relied upon 65 Ill. 160, the plaintiff brought suit for an an allegation that he was a passenger upon injury caused by the falling of a portion of defendant,s cars, being carried for reward, the brick and plastering in the common coun without stating definitely the termini of his cil chamber in the city. The allegation in journey on defendant,s line of road. But, the declaration was that ‘the plaintiff, who having gone into detail in his allegation, the was pursuing his occupation as journalist,’ law requires him to prove them as laid. was injured, etc., ‘and thereby the plaintiff, What is said in Bell v. Senneff, 83 Ill. 125, as lawyer, lecturer, and journalist, became is in point here: “As a general rule a party and was sick, sore, and incapacitated from is required to prove the averments of his attending to his business, and so continued pleadings as he makes them. He may aver for a long time, to-wit, for two months; and, more than is required; but, as a general as regards plaintiffs profession as a lecturer, rule, he must prove them, although unneces he has been almost wholly, ever since, dis sarily made." In Derragon v. Rutland, 58 abled from pursuing it.’ It was held that Vt. 128, 3 Atl. 332, it was held that every under these allegations the plaintiff could averment which the pleadings make material not give in evidence the fact of a particular as a descriptive part of the cause of action engagement to lecture in Virginia. and the must be proved as alleged; and any vari probable gains thereof. The court say: ‘In .ance which destroys the legal identity of order to subserve the ends of good pleading, 62 GENERAL AND SPECIAL DAMAGES.

which are to apprise the opposite party of committed in admitting it, excluded the evi the nature of the claim, and prevent surprise, dence entirely from the consideration of the it was necessary that these special damages, jury, the error would in a great measure and the facts on which they were based, have been removed; but that course was not " should have been set out in the declaration.’ pursued. The instruction did not, in our Baldwin v. Railroad Corp. 4 Gray, 333. City judgment, cure the error. For the errors of Bloomington v. Chamberlain, 104 Ill. 21".’, indicated the judgment of the appellate and is also a case in point. There the admitted circuit courts will be reversed, and the cause evidence was held not to be erroneous, but remanded. the ruling was placed on the express ground (Oct. 23, 1893.) that the evidence was not as to the loss of profits of a particular engagement. Had the MAGRIJDER, .T., (dissenting.) It seems to evidence gone to that extent, as is the case me that the petition for rehearing in this here, it is plainly laid down that the evidence case has demonstrated beyond question the would have been erroneous, as held in City right of the appellee to a rehearing. First, of Chicago v. O‘Brennan, 65 ill. 160. This the declaration is suflicient as a declaration is apparent from what is said in the opinion upon the common-law liability of the carrier; of the court on page 27 . We think the rule second, the declaration alleges that the plain established in the cases cited is the correct tiff “was hindered and prevented from trans one, and the court erred in the admission of acting and attending to his business and the evidence. It cannot be said that the affairs, and lost and was deprived of divers error was a harmless one, as the evidence great gains, profits, and compensations, was of a character calculated to produce on which he might and otherwise would have the minds of the jury an impression that the made and acquired." This was a sufficient plaintiff, on account of his capacity to earn allegation of special damage to justify the a large salary before the injury, which he admission of evidence that plaintiff at the had lost by the accident, and hence should time of the injury was receiving a compensa recover large damages. tion for his services as a traveling salesman It may, however, be said that the error of $3,000 per annum, under the decision made was cured by an instruction given by the in City of Bloomington v. Chamberlain, 104 court as follows: “The court permitted the Ill. 268. In the latter case the allegation in testimony of what plaintiff was earning at the first count of the declaration was that the time of the injury charged. This testi “plaintiff was hindered from transacting her mony was admitted for no other purpose business and affairs and deprived of large than to show plaintiffs capacity to earn gains and profits, which she otherwise would ‘money. and must not be considered in any have earned," and, in the second count, “that respect as a measure of damages.“ It is not she had been rendered unable to earn or make entirely clear what the instruction means. for herself a living, and had been depriv While the court directed the jury that the ed of large gains and profits which she other evidence was not to be considered as a meas wise would have earned." Under these al ure of damage the court failed to point out legations the plaintifl! was there permitted what use they should make of the evidence. to testify that she had taught school at The court ruled, when the evidence was $50 per month. If the law is a science of offered. that it was competent for the con precedents, no instance can be found where sideration of the jury. That ruling was a precedent so exactly fits a subsequent state never changed. The evidence was allowed of facts as the Chamberlain Case fits the to remain with the jury for their considera facts disclosed by the record in the case at tion, and it could have no other effect than bar upon the second point here designated. to swell the damages. Had the court, when it was ascertained that an error had been BAILEY, C. J., and BAKER. J., concur.