Buce v. Incorporated Town of Eldon, Iowa

• Decision Date: 12 January 1904
• Citation: 97 N.W. 989,122 Iowa 92
• Parties: ANNA BUCE v. THE INCORPORATED TOWN OF ELDON, IOWA, Appellant
• Court: Iowa Supreme Court

97 N.W. 989

122 Iowa 92

ANNA BUCE v. THE INCORPORATED TOWN OF ELDON, IOWA, Appellant

Supreme Court of Iowa, Des Moines

January 12, 1904

Appeal from Wapello District Court.--HON. F. W. EICHELBERGER, Judge.

ACTION to recover for personal injuries caused by a defective sidewalk. There was a judgment for the plaintiff, and the defendant appeals.

Affirmed.

E. K Daugherty for appellant.

Fullen & Ayres and Jaques & Jaques for appellee.

OPINION

SHERWIN, J.

The jury gave the plaintiff $ 675, and the appellant contends that the amount is excessive. We do not think so. The plaintiff was certainly seriously injured and confined to her bed for two weeks thereafter, a part of which time she was under the care of a physician. Before receiving the injury she was a strong, healthy woman, entirely free from the aches and pains which afterwards afflicted her and which continued from the time of the injury up to the trial, a period of a year. Her disability was also such that she was unable to perform many of the usual household duties which she had theretofore attended to.

An instruction was given authorizing a recovery for future pain and suffering, and this is complained of. The evidence tended, at least, to show that the plaintiff had suffered severe pain right up to the time of the trial, and that she had not then fully recovered from the injury. Under such circumstances, the instruction was clearly correct, and there was evidence supporting it. The fact that the pain may have been caused by a physical condition which was not specifically pleaded would not change this result, because such physical condition was shown without objection to have been the possible result of the fall on the defendant's walk. It is a familiar rule that, if a case is mutually tried on a theory unsupported by the pleadings, objection cannot thereafter be heard.

The hypothetical question to Dr. Box was a fair summary of the facts which the plaintiff's evidence tended to prove, and it was not necessary to embody more therein; hence there was no error in overruling the defendant's objection thereto. Bever v. Spangler, 93 Iowa 576, 61 N.W. 1072; Kirsher v. Kirsher, 120 Iowa 337, 94 N.W. 846.

Several witnesses were permitted to testify to the plaintiff's complaints of present pain and suffering, extending up to the time of the trial. There was no error in this ruling. Complaints of present pain and suffering are competent. Their...