Shafer v. Harvey

• Decision Date: 21 February 1916
• Docket Number: No. 11840.,11840.
• Citation: 192 Mo. App. 502,183 S.W. 670
• Parties: SHAFER v. HARVEY et al.
• Court: Missouri Court of Appeals

183 S.W. 670

192 Mo. App. 502

SHAFER v. HARVEY et al.

No. 11840.

Kansas City Court of Appeals. Missouri.

February 21, 1916.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

"To be officially published."

Action by Elizabeth Shafer against Ford F. Harvey and another, receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

John H. Lucas, Charles N. Sadler, and Charles A. Stratton, all of Kansas City, for appellants. Guthrie, Gamble & Street, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff boarded one of the cars of the Metropolitan Street Railway Company then being operated by the defendant receivers. Before she had time to become seated, so the petition alleges, the car was negligently and violently started with a great jerk, throwing plaintiff down and injuring her. The petition charges that:

"The back, spine, ribs, and all of the internal organs of plaintiff were seriously injured, and the body and limbs of the plaintiff severely bruised and wounded, causing the plaintiff great pain in body and mind, and impairing the strength, activity, and vitality of the plaintiff, all of which injuries are permanent."

Under the foregoing allegation, the plaintiff was permitted to introduce evidence relating to a paralysis of her left hand, a partial paralysis of her right, and to an emaciation or atrophy of the muscles of her arm and shoulder. The question presented by the appeal is: Was evidence of these conditions admissible under the above-quoted allegation?

The distinction between "general damages" and "special damages" is thus stated in 8 Am. & Eng. Ency. of Law (2d Ed.) 542 and 543:

"General damages are those which necessarily and by implication of law result from the act or default complained of."

"Special damages, as contradistinguished from general damages, have been defined as those which are the natural but not the necessary result of the act complained of."

And the general rule for pleading damages is thus stated in 13 Cyc. 176:

"If the damages sought to be recovered are those known as special damages, that is, those of an unusual and extraordinary nature, and not the common consequence of the wrong complained of or implied by law, it is necessary in order to prevent surprise to the defendant that the declaration state specifically and in detail the damages sought to be recovered."

At the time this case was tried, the cases of Gurley v. Missouri Pacific Railway, 122 Mo. 141, 26 S. W. 953, and of Moore v. St. Louis Transit Company, 226 Mo. 689, 126 S. W. 1013, announced the rule in this state as to the admissibility in evidence of conditions arising from an injury but not specifically pleaded. Prior to these two cases, the rule theretofore existing was that:

"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." Cooley v. Kansas City Elevated R. Co., 170 Mo. App. 42, loc. cit. 45, 156 S. W. 54; Thompson v. St. Louis, etc., R. Co., 111 Mo. App. 465, 86 S. W. 465.

The two Supreme Court cases modified this rule somewhat, holding that, in order to be proven without being specifically pleaded, a natural result did not have to be a necessary result but only a usual one reasonably expected to follow from the injuries inflicted and alleged. 226 Mo. 689, loc. cit. 703, 126 S. W. 1013. And the trial court in the case at bar finally admitted the testimony as to paralysis and atrophy on the theory that it was admissible under the rule obtaining in those cases. Since the trial of this case, however, the Supreme Court, in the case of Hall v. Manufacturers Coal & Coke Co., 260 Mo. 351, 168 S. W. 927, disapproved of the holding in the Gurley and Moore Cases and went back to the former rule, namely, that special damages, which are the natural but not necessary result of the injury complained of, must be specifically alleged in the petition. Under the rule established by this latest announcement of the Supreme Court, was the evidence above mentioned admissible?

It will be observed that the paralysis and emaciation or atrophy testified to are not "bodily injuries" received at the time of the fall, but are conditions resulting from the bodily injuries received at that time. Concerning such conditions, Graves, J., in Price v. Metropolitan St. Ry. Co., 220 Mo. 435, loc. cit. 466, 119 S. W. 932, 132 Am. St. Rep. 588, says:

"If plaintiff proposed to rely upon conditions and diseases growing out of the alleged bodily injuries, then specific pleading thereof should be required, or the evidence excluded."

His opinion in this case was adopted as the opinion of the court en banc. And in his dissenting opinion in the Moore Case (226 Mo. loc. cit. 710, 126 S. W. 1013) Judge Graves said:

"It is a well-known fact that, from certain kinds of physical injuries, certain results will thereafter inevitably follow. In other words, that such injuries will naturally produce certain conditions and diseases. In such case, an allegation in the petition of the injury inflicted would justify proof of such conditions and diseases as would of necessity follow the injury, and as to such conditions and diseases the defendant must come prepared to defend. But, on the other hand, there are other physical injuries which may or may not produce resulting conditions or diseases. For instance, an injury to the lung might superinduce pneumonia, but not necessarily so. An injury to the nervous system might produce blindness, but not necessarily so. These conditions or diseases last mentioned may as readily come from other causes as from the physical injury or injuries. In such case, the petition should be specific, to the end that the defendant could come prepared to meet the issues and show that the condition or disease was not caused by the physical injury. This he cannot do if the unpleaded conditions or diseases are sprung...