Antokol v. Barber

• Decision Date: 08 April 1924
• Citation: 248 Mass. 393,143 N.E. 350
• Parties: ANTOKOL v. BARBER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 393

143 N.E. 350

ANTOKOL

v.BARBER.

Supreme Judicial Court of Massachusetts, Middlesex.

April 8, 1924.

Appeal from First District Court, Middlesex County; Warren H. Atwood, Judge.

Action of tort by Meyer Antokol against Giles A. Barber to recover for negligent injuries to automobile in a collision.From an order dismissing report, defendant appeals.Order affirmed.J. J. Shaughnessy, of Marlboro, for appellant.

J. M. Maloney, of Boston, for appellee.

RUGG, C. J.

This is an action of tort.It was alleged in the declaration in effect that, by reason of negligent operation by the defendant of an automobile truck, it ran into the stationary automobile of the plaintiff and ‘greatly damaged it.’There was in the writ a general allegation of damage to the plaintiff.At the trial, the due care of the plaintiff and the negligence of the defendant were conceded.The only controversy related to damages.No objection was made to recovery for cost of repairs made on the automobile of the plaintiff.The plaintiff, having offered evidence that he had used his automobile before and at the time of the accident in his business, claimed damages for the loss of such use while it was being repaired.To prove these damages he offered evidence that he had paid one hundred and ten dollars for hire of an automobile for use in his business while his own was being repaired, that the price paid was reasonable and was the ‘going price at the time’ and place of hire.The court, against the objection of the defendant, ruled that this evidence was admissible.The court, against the objection of the defendant, also ruled that the plaintiff was entitled to recover as damages a reasonable amount paid for the use of an automobile in his business while the damaged automobile was being repaired.The correctness of these two rulings is reported.It was found as a fact that the damaged automobile was used by the plaintiff in his business in traveling over certain routes at stated periods and that the plaintiff was deprived of its use while being repaired, due to the tortious conduct of the defendant.The general finding for the plaintiff, in view of other rulings made, imports further findings that it was reasonably necessary for the plaintiff to hire an automobile to take the place of his damaged car, and that the price paid for it was reasonable.

It is required by our practice act that the ‘declaration shall state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action.’G. L. c. 231, § 7, second.Under that requirement the general allegation of damages is sufficient to enable a plaintiff to recover all damages which are the natural or necessary consequences of the cause of action so stated.Damages such as the law will imply from the facts set forth in the declaration may be recovered.But when special or peculiar damages are claimed, it is necessary to aver them specifically.The salutary rule of the common law requiring the plaintiff to allege in his declaration particular or unusual damages remains unchanged.The underlying and sound justification for that rule is that the defendant ought to be guarded against surprise at the trial by evidence tending to prove damages of which he had no previous notice.The statement of the rule is simple.It sometimes may be difficult to determine what are the natural consequences, actually but not necessarily flowing from that torttious conduct.Warner v. Bacon, 8 Gray, 397, 69 Am. Dec. 253;Knapp v. Slocomb, 9 Gray, 73;Parker v. Lowell, 11 Gray, 353;Adams v. Barry, 10 Gray, 361;Prentiss v. Barnes, 6 Allen, 410.It was held in Baldwin v. Western Railroad, 4 Gray, 333, decided in 1855, that evidence tending to show the education and learning of the plaintiff and that she was a school teacher ‘could have no relevancy or application to the questions at issue between the parties, except as forming the basis on which special damages were to be assessed for the injury of which she complained.It did not tend to show an injury falling within the class of general damages.’In Millmore v. Boston Elevated Railway, 19 Mass. 370, 84 N. E. 468, it was held that compensation for impairment of earning capacity by a housewife caused by a tortious act resulting in personal injuries might be recovered under a general allegation of damages without special allegation.McCarthy v. Boston Elevated Railway, 223 Mass. 568, 112 N. E. 235;Koch v. Lynch, 247 Mass. 459, 141 N. E. 677.

It is common practice to permit the plaintiff in actions of tort for personal injuries without special pleading to introduce evidence as to his wages earned as bearing on the compensation due him for enforced inability to work although not strictly recoverable as wages or salary.Murdock v. New York & Boston Dispatch Express Co., 167 Mass. 549, 46 N. E. 57;Sibley v. Nason, 196 Mass. 125, 131, 81 N. E. 887,12 L. R. A. (N. S.) 1173, 124 Am. St. Rep. 520,12 Ann. Cas. 938;Stynes v. Boston Elevated Railway, 206 Mass. 75, 91 N. E. 998,30 L. R. A. (N. S.) 737;Mahoney v. Boston Elevated Railway, 221 Mass. 116, 108 N. E. 1033.

The allegation of great damage to the automobile of the plaintiff implies not only expense of repair but also loss of use while the harm caused by the collision is being amended.It is difficult to conceive of an injury to an automobile such as is here described which does not import as an inevitable consequence loss of use for some period of time.The loss of use of the automobile during the period of repair is as much the natural and necessary consequence of the tortious act of the defendant described in the declaration as is the cost of the repair.It is as plainly so as is the loss of time of an individual arising from personal injuries, or the loss...