Fitchburg R. Co. v. Donnelly

• Decision Date: 03 June 1898
• Docket Number: 477.
• Parties: FITCHBURG R. CO. v. DONNELLY.
• Court: U.S. Court of Appeals — Seventh Circuit

87 F. 135

FITCHBURG R. CO. v. DONNELLY.

No. 477.

United States Court of Appeals, Seventh Circuit.

June 3, 1898

John H Coulter, for plaintiff in error.

A. W Bulkley, for defendant in error.

Before WOODS and SHOWALTER, Circuit Judges, and BUNN, District Judge.

BUNN District Judge (after stating the facts).

There are 33 assignments of error, only one of which it will be necessary to consider.

On the trial, without any allegation of special damages in the declaration, the defendant in error was allowed to prove that he had been engaged for several years in the occupation of accompanying stock from Chicago to Philadelphia, and other Eastern markets, and that for three years he had earned $75 a week, that at and before the time of the accident he was allowed the fixed sum of $50 for each trip, and that he made a trip nearly every week. Objection was made and proper exception taken to this proof, and a motion made to strike it out as being incompetent under the issues; but the objection and motion were overruled, and exceptions properly preserved. This was error for which the judgment must be reversed. It was showing special damages without any allegation of special damages in the declaration, which is contrary to the well-settled rule. General damages, or such damages as the law holds to be the necessary result of the cause of action set forth, need not be specially pleaded, but may be recovered under the general allegation of damage. Special damages, which are the natural, but not necessary, result of the injury complained of, must be specially alleged. Such injuries do not necessarily result from the defendant's wrongful act; hence they must be specially alleged, in order that the defendant may have notice thereof, and be prepared to meet the same upon the trial. 5 Enc.Pl.& Prac.pp. 717 719, and cases cited. The rule as laid down by Chitty in his Pleading (page 385), and adopted by the supreme court of New York in Squier v. Gould, 14 Wend. 159, is still the general rule both in this country and in England:

'That when the damages actually sustained do not necessarily arise from the act complained of, and consequently are not implied by law, in order to prevent surprise to the defendant the plaintiff must state in his declaration the particular damage that he has sustained, or he will not be permitted to give evidence of it upon the trial.'

In Taylor v. Town of Monroe, 43 Conn. 36, in a...