Cooley v. Kansas City Elevated Railway Company
| Decision Date | 21 April 1913 |
| Citation | 156 S.W. 54,170 Mo.App. 42 |
| Parties | IVY COOLEY, Respondent, v. KANSAS CITY ELEVATED RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
Affirmed.
John H Lucas, and Chas. N. Sadler for appellant.
(1) The court erred in admitting testimony of miscarriage, and in admitting testimony of inability to sleep, because such evidence broadens the issues made by the pleadings. Thompson v. Railroad, 111 Mo.App. 465; Price v Railroad, 220 Mo. 435; Moore v. Transit Co., 226 Mo. 689; Margrane v. Railroad, 183 Mo. 119; Arrata v. Railroad, 150 S.W. 1122; Conway v Railroad, 143 S.W. 516. (2) The court erred in giving instruction No. 1, asked by plaintiff. (a) It is not limited to the issues made by the pleadings. Detrich v. Railroad, 143 Mo.App. 176; Beave v. Transit Co., 212 Mo. 331; Conway v. Railroad, 143 S.W. 516; Roscoe v. Railroad, 202 Mo. 576; Thomas v. Bobb, 45 Mo. 384; Crole v. Thomas, 17 Mo. 329; Klamp v. Rodenwalt, 19 Mo. 449. (b) It assumes disputed facts. Brown v. Railroad, 80 Mo. 459; Wilkerson v. Thompson, 82 Mo. 327; Moffiatt v. Conkling, 35 Mo. 695; Klein v. Transit Co., 117 Mo.App. 691. (c) It is misleading, confusing, argumentative and repugnant on its face. Gessner v. Railroad, 132 Mo.App. 584; Wood v. Steamboat Fleetwood, 19 Mo. 532; Frank v. Railroad, 57 Mo.App. 186; see also authorities under point 1.
Fyke & Snider and Anderson & Robinett for respondent.
--Plaintiff, while a passenger on a street car, received injuries caused by a collision of her car with another. Suit was brought against the Metropolitan Street Railway Company and the Kansas City Elevated Railway Company, but during the trial plaintiff dismissed as to the former.
The contest was not over defendant's liability, but over the questions as to what injuries plaintiff received in the collision and whether it caused her condition at the time of the trial.
The petition alleged that as a result of the collision she was "bruised, maimed, sprained, lacerated and wounded; that both of her lower limbs, feet and ankles were sprained, wrenched and bruised; her back was wrenched; that said fall caused internal injuries; that she suffered therefrom retroversion and falling of the womb, that said injuries have caused internal hemorrhages and laceration of the abdominal walls and displacement of the pelvic organs."
Defendant's most serious complaint is that the court, over defendant's objection, admitted evidence showing that after the injury plaintiff became pregnant and suffered a miscarriage, which took place about eight or nine months after the collision. Defendant contends that, as the miscarriage was not pleaded, the evidence in regard thereto should have been excluded; that to admit it is to allow proof of special damages when the petition pleads general damages only.
The question of its admissibility is one of some difficulty which is increased by reason of the fact that many cases do not state the reason for admitting or excluding the proffered evidence, but rest its admissibility or inadmissibility simply on whether or not it tends to prove general damages or special damages; and then, in distinguishing between these damages say that general damages are such as are the natural and necessary result of the act pleaded while special damages are those which are the natural, though not the necessary, result thereof. This may define them correctly in the light of the facts of the particular case in which such definitions are used. But these definitions may not furnish an accurate or safe rule from which to determine the admissibility of evidence in another case where the facts are different. For instance, these cases, as stated, frequently define the difference between general damages and special damages in such way as to lead one to suppose that the admissibility of the evidence depends on whether the results it tends to show are, or are not, the "necessary" consequence of the wrongful act pleaded. That is to say, if the results which the offered evidence tends to show are the "natural and necessary" consequences of the act pleaded, then they are general damages and the evidence is admissible under a general pleading; but if such results are the natural, but not necessary, consequences of the wrong pleaded, then they are special damages and the evidence is not admissible. [Thompson v. Railroad, 111 Mo.App. 465.] 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 the evidence is admissible; but if they are the natural, but 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.
If that is the rule we are to follow, it would seem that in the case at bar we are required to reason thus: Many wombs are displaced that do not suffer miscarriages. Such a result cannot occur unless there comes into existence the after occurring fact of pregnancy. Hence the miscarriage was a natural but not a necessary consequence of the injuries pleaded. Hence, according to the test, the miscarriage in this case, not having been pleaded, should not have been admitted in evidence because it was a natural but not a necessary result of the injury. And many cases appear to justify the use of this test. [Brown v. Railroad, 99 Mo. 310, l. c. 318; Nicholson v. Rogers, 129 Mo. 136, 31 S.W. 260, l. c. 140; Lesser v. Railway, 85 Mo.App. 326, l. c. 331; Mellor v. Railroad, 105 Mo. 455, l. c. 464; Coontz v. Railroad, 115 Mo. 669, l. c. 674.] As said before, such a test is correct when applied to the facts in the case which thus make use of it. But is it entirely accurate to apply it to other cases where the facts are dissimilar? Or is it safe to follow a definition which, however correct it may be when used with reference to the facts in that particular case, may not be broad enough to apply to other facts?
In the case of Gurley v. Railroad, 122 Mo. 141, the injury pleaded was a crushed leg causing permanent and irreparable bodily injuries, and evidence showing a paralyzed arm was held admissible. This may have been a natural result of the injury alleged, but certainly it was not a necessary result thereof.
And in the recent case of Moore v. Transit Co., 226 Mo. 689, 126 S.W. 1013, the Supreme Court, in the majority opinion, say that this rule, limiting the damages provable under a general allegation to those which are the necessary result of the main injuries alleged, is too strict (l. c. 702-3). In this case the Supreme Court say that all injuries which naturally result from the main or specific injury alleged may be shown without being specifically pleaded, and that such natural result does not have to be a necessary result but only a usual one reasonably expected to follow from the injuries inflicted and alleged (l. c. 703). In the petition there was a general allegation of "serious injuries to the back, legs, kidneys and nervous system," and the court held that, under it, evidence could be offered of impotence and loss of sexual desire. The loss of sexual desire was a natural but certainly not a necessary result of the injuries pleaded in that case. And it would seem that this would have made it inadmissible as being special damages as this is the definition frequently given of such damages. [Roberts v. Graham, 6 Wall. 578, 18 L.Ed. 791; 8 Am. & Eng. Ency. of Law 540; Thompson v. Railroad, 111 Mo.App. 465, l. c. 476; 5 Ency. of Pl. & Pr. 720.]
So that if the Gurley and the Moore cases are to be followed as the doctrine now laid down by the Supreme Court, it will not do to say that simply because the miscarriage testified to in this case is not a necessary result of the injuries alleged, therefore evidence of it is inadmissible.
But the test as set up by these two cases is that, if the miscarriage...
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