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.