Irby v. Wilde

• Decision Date: 11 April 1907
• Citation: 150 Ala. 402,43 So. 574
• Parties: IRBY v. WILDE.
• Court: Alabama Supreme Court

43 So. 574

150 Ala. 402

IRBY v. WILDE.

Supreme Court of Alabama

April 11, 1907

Appeal from Circuit Court, Barbour County; A. A. Evans, Judge.

Action by George H. Wilde against L. E. Irby for assault and battery.From a judgment for plaintiff for $500, defendant appeals.Reversed and remanded.

The complaint followed the Code form, and contained no allegation of special injury as a basis for a claim for damages.

A. H Merrill and Peach & Thomas, for appellant.

G. L Comer, for appellee.

TYSON C.J.

This action was brought to recover damages for an assault and battery alleged to have been committed by defendant upon the plaintiff.The complaint is in the Code form, and is in this language: "The plaintiff claims of the defendant twenty-five hundred dollars, damages for an assault and battery committed by defendant on the plaintiff, viz., on or about the 8th day of February, 1906."

Against the defendant's objection the plaintiff was permitted to prove that he lost 10 days from his occupation or business and that this lost time was reasonably worth $4 per day, and also that he employed a physician to treat his wounds, whose services were reasonably worth $1, which he paid.The grounds of objection interposed to this testimony was that the damages proven were special, as distinguished from general damages, and were not, therefore, claimed in the complaint.In other words, the question raised is whether, under the allegations of the complaint, although in the form prescribed by the Code, the plaintiff is limited in his recovery to general damages; and, if so, was the value of his lost time and of the physician's services within that class?Or, if they are special damages, are they recoverable, unless alleged and claimed in the complaint?Since the decision of Lewis v. Paull,42 Ala. 138, it has been uniformly held by this court that the Code form does not dispense with the averment of special damages, whenever they are necessary to be averred at common law, in order to entitle a party to recover them.In Dothard v. Sheid,69 Ala. 135, it is said: "The form of complaint laid down in the Code was designed only to cover general damages, or such as necessarily result, and which the law implies, from the injury complained of; the defendant being presumed to be aware of the necessary consequences of his conduct, and therefore not liable to surprise in the proof of them."See, also, Pollock v. Gantt,69 Ala. 373, 44 Am Rep. 519;Ross v. Malone,97 Ala. 529, 12 So. 182.In the latter case cited special damages were not allowed to be recovered, because not alleged in the complaint although in Code form.The quotation above from Dothard v. Sheid is a correct statement of the common-law rule with respect to the recovery of general damages, where the complaint contains no more than a...