Kane v. New Idea Realty Co.

• Decision Date: 30 April 1926
• Citation: 133 A. 686
• Court: Connecticut Supreme Court
• Parties: KANE v. NEW IDEA REALTY CO.

133 A. 686

KANE

v. NEW IDEA REALTY CO.

Supreme Court of Errors of Connecticut.

April Term, 1926.

Appeal from Superior Court, New Haven County; Baldwin, Judge.

Action by Lillian Kane against the New Idea Realty Company to recover for personal injuries alleged to have been caused by the negligence of defendant in permitting water to flow from its building onto the sidewalk and freeze, upon which the plaintiff slipped and fell. Judgment for plaintiff upon a verdict of the jury for $8,895, and defendant appeals. No error.

William B. Ely and Louis B. Zacher, both of New Haven, for appellant.

Walter J. Walsh and John J. Sullivan, Jr. both of New Haven, for appellee.

HAINES, J. The reasons of appeal are based, essentially, on two grounds, viz.: (1) for refusing to set aside the verdict (a) as against the evidence, (b) as excessive, and (c) as not a proper basis for judgment; and (2) for claimed errors in the admission of evidence. The latter will be first considered.

Counsel for the plaintiff offered evidence to prove that, as a result of her injuries from the fall, she had ceased to menstruate. This was objected to on the ground that it was an attempt to show special damages for which no basis was furnished by the allegations in the complaint. The allegations of physical injury and suffering contained in the complaint, so far as they can be said to have any relation to an injury of the sort attempted to be shown by the evidence in question, are the following: That she "was thrown suddenly with great force and violence upon her spine upon the sidewalk" (paragraph 8); "was badly wounded and bruised upon all parts of her head, limbs, and body"; "suffered especially a concussion of the spine, sprain of the sacroiliac joint, and sprained the right knee and elbow" (paragraph 9); "suffered a severe shock to her nervous system, from which she will suffer for a long period of time to come" (paragraph 10); "suffered intense physical pain, mental anxiety, and distress of mind" (paragraph 11); "has been disabled from following her usual occupation, * * * that of nurse" (paragraph 12).

The distinction between general and special damages has often been stated by this court:

"When a person alleges and proves that he has been injured in his person, the law implies that damages result from such injury, and he may recover such damages as necessarily and directly result therefrom, under a general allegation in the complaint that damages have been sustained by him by reason of the injury. * * * If he seeks to recover damages other than such as necessarily and immediately follow from the injury, he must allege such damages and prove them." Cordner v. Hall, 84 Conn. 117, 119. 79 A. 55, 56; Smith v. Whittlesey, 79 Conn. 189, 191, 63 A. 1085, 7 Ann. Cas. 114.

The rule laid down by Greenleaf may be summarized as follows:

"All damages must be the result of the injuries complained of. * *. * Those which necessarily result are termed general damages. * * * The defendant must be presumed to be aware of the necessary consequences, * * * and therefore cannot be taken by surprise in the proof of them. * * * But where the damages, though the natural consequences of the act complained of, are not the necessary result of it, they are termed special damages, which the law does not imply; and therefore, in order to prevent a surprise upon the defendant, they must be particularly specified in the declaration or the plaintiff will not be permitted to give evidence of them at the trial."

A clear exposition of the rule was given by Judge Loomis in the case of Tomlinson v. Derby, 43 Conn. 562, 567. He refers to the obviously greater difficulty of applying the rule in a given case than in stating it, and adds:

"The necessary result of an injury is often and easily confounded with the natural and proximate result, and all legal damage whether general or special must naturally and proximately result from the act or default complained of. * * *

"It would seem however that when the consequences of an injury are peculiar to the circumstances and condition of the injured party, the law could not imply the damage simply from the act of causing the injury."

As will clearly appear from the above statements of the rule, the plaintiff could not have asked the jury for damages for this particular injury, for it was obviously "peculiar to the circumstances and condition of the injured party" and not a necessary result. Though the complaint shows the plaintiff was a woman, her age is not stated, and there is no allegation which could be held to fairly put the defendant upon notice of such a special consequence, as the plaintiff showed by the evidence in question.

It must be noted, however, that there is nothing in the record to show that the plaintiff asked special damages for this cause. We do not have the charge of the court in the record, and must assume, in the absence of any claim to the contrary, that as to the defendant the charge was unexceptionable in this respect. Since it does not appear that the jury were asked or directed to award damages for this cause, we cannot assume that they did so.

"It is only when damage is claimed for special consequences which must depend on the peculiar circumstances of the plaintiff at the time and previous to the injury * * * that such special consequences are a special damage which must be stated with particularity." Cordner v. Hall, 84 Conn. 117, 120, 79 A. 55, 56.

So far as appears by the record, therefore, this evidence served only to characterize and indicate the extent of the injuries alleged in the complaint, and it was legitimate and proper evidence.

In Brzezinski v. Tierney, 60 Conn. 56, 22 A. 486, under a general charge of assault and battery, it was held proper to show that defendant was pushed against a car and a fistula resulted.

In Curelli v. Jackson, 77 Conn. 115, 123, 58 A. 762, it was alleged that one of the plaintiff's eyes was so injured by the explosion that it was necessary to remove it; that a piece of the ulna of the arm was blown out, causing a permanent injury and greatly impairing its use; and that by reason of such injuries the plaintiff suffered great pain. Evidence was offered that the wearing of an artificial eye caused pain, and that the injury to the arm rendered it...