Elijah v. Dowling
| Decision Date | 23 February 1912 |
| Docket Number | 7,512 |
| Citation | 97 N.E. 551,49 Ind.App. 515 |
| Parties | ELIJAH ET AL. v. DOWLING |
| Court | Indiana Appellate Court |
From Jasper Circuit Court; George F. Marvin, Special Judge.
Action by Thomas S. Dowling against Orrin Elijah and another. From a judgment for plaintiff, defendants appeal.
Affirmed.
Rogers & Rogers and George A. Williams, for appellants.
William Darroch, for appellee.
Action by appellee against appellants to recover damages for injuries to the person of appellee, due to an alleged assault and battery. Trial by jury, with a verdict and judgment for appellee in the sum of $ 1,000.
Appellants in their brief enumerate the following as errors relied on for reversal: "(1) Permitting plaintiff to testify that he was obliged to employ additional labor on account of his injuries, when such special damages were not specially pleaded; (2) giving judgment on the verdict in favor of appellee and against appellants, in the sum of $ 50 damages for employing additional help; (3) overruling the motion of appellants for a new trial, on the ground of newly-discovered evidence."
While other errors are assigned, only the errors relied on by appellant for reversal will be considered.
It does not appear from the first error relied on, and which was one of the causes for a new trial, that the court erred in permitting plaintiff to testify that he was obliged to employ additional labor on account of his injuries. In his complaint he sets out the nature and extent of his injuries, and avers that by reason thereof he was disabled for eight weeks during all of which time he suffered, and still suffers great pain, and that he was, and still is, prevented from performing ordinary labor and from transacting his business. As a witness in his own behalf he was asked the following question: "What is the fact, Mr. Dowling, about the physical condition you were placed in by reason of these injuries, causing you to pay out--to employ additional labor during the winter following the injury?" He answered as follows: "I had to keep a hired man to do my work all winter; had to keep this man extra, on account of the injuries that I received."
Appellants insist that the purpose of this question and answer was to establish and recover special damages not specifically pleaded. Clearly the question was not propounded for the purpose of proving what expense appellee had incurred for additional labor, and that he did not so understand the question is shown by his answer. The burden was on appellee to prove that he had been damaged by the wrongful act of appellants. It was important to show the extent of his injuries, and his incapacity to work was a proper circumstance to be developed by the evidence. We think appellants were not harmed by the answer.
The second error relied on for reversal is that the court erred in rendering judgment on the verdict in the sum of $ 50 for damages incurred because of the employment of additional help. It is not averred in the complaint that any sum of money was paid or any obligation incurred by appellee on account of additional help. No special damages were alleged, and could not, therefore, be made the basis of any recovery. Oldfather v. Zent (1895), 14 Ind.App. 89, 92, 41 N.E. 555. The record, however, discloses that the court submitted to the jury, among others, a certain interrogatory which required the jury to state the amount of the damages incurred by the employment of additional help, and an answer of "fifty dollars" was returned. The general rule is that in actions of tort it is improper to require the jury to answer interrogatories, itemizing the elements of damage, where it is unnecessary specially to plead such elements of damage. Keller v. Gaskell (1898), 20 Ind.App. 502, 513, 50 N.E. 363; Southern Ind. R. Co. v. Moore (1904), 34 Ind.App. 154, 72 N.E. 479; Ohio, etc., R. Co. v. Judy (1889), 120 Ind. 397, 400, 22 N.E. 252; Cleveland, etc., R. Co. v. Miller (1905), 165 Ind. 381. 389, 74 N.E. 509.
In this case the general verdict was for $ 1,000, and whether the interrogatory was properly or improperly submitted, it does appear that the sum of $ 50 was included in the amount of the verdict, and was for damages not specially pleaded. Appellants, however, are not shown by the record to have made any objection or taken any exception. In their motion for a new trial they did not assign excessive damages as a cause therefor, nor did they file...
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