$7600. Particularity of Averment of Injuries Suffered.-A complaint for personal injuries must aver with certainty and definiteness, to a common intent, what such injuries were, and it is not sufficient to state that they were serious and that plaintiff suffered therefrom "both in body and mind." Where the nature of the injury is sufficiently averred in general terms, evidence is admissible to show all specific injuries directly resulting from the negligent act. It has 1 1 City Delivery Co. v. Henry, 139 Ala. 161; s. c. 34 South. Rep. 389; Dittman v. Edison Electric Illuminating Co., 87 App. Div. (N. Y.) 68; s. c. 83 N. Y. Supp. 1078; Hess v. Metropolitan St. R. Co., 27 Misc. (N. Y.) 823; s. c. 57 N. Y. Supp. 222; Norfolk &c. R. Co. v. Reeves, 97 Va. 284; s. c. 33 S. E. Rep. 606. 2 City Delivery Co. v. Henry, 139 Ala. 161; s. c. 34 South. Rep. 389. 3 Quirk v. Siegel-Cooper Co., 26 Misc. (N. Y.) 244; s. c. 56 N. Y. Supp. 49; Tobin v. Fairport, 12 N. Y. Supp. 224; Sherman &c. R. Co. v. Bell (Tex. Civ. App.), 58 S. W. Rep. 147 (no off. rep.). Allegations of a declaration, in an action to recover damages for personal injuries, that the plaintiff sustained certain serious and permanent injuries, to wit, a fracture of the right arm near the shoulder, and several other serious bruises, etc., are supported by proof that the arm was fractured just below the shoulder joint, and that the effect of the injury extended to and affected the joint, and produced restriction thereof: Atchison v. Wills, 21 App. (D. C.) 548. Un der a complaint alleging injuries to the left side of plaintiff's head and her entire left side, testimony showing an injury to plaintiff's left ear is competent: Radjaviller v. Third Ave. R. Co., 58 App. Div. (N. Y.) 11; s. c. 68 N. Y. Supp. 617. A complaint in a personal injury case, alleging that plaintiff received severe injuries, from which he has not recovered and will not recover, and that by reason of the injuries he has been unable to follow his usual occupation or do any work, and that he has suffered great pain, is sufficiently specific to warrant evidence as to any effects of the injuries received, in the absence of a motion to make the complaint more definite or for a bill of particulars: Bolte v. Third Ave. R. Co., 38 App. Div. (N. Y.) 234; s. c. 56 N. Y. Supp. 1038. Where plaintiff alleged that she "was greatly injured in her person, and the muscles of her shoulder were greatly torn and lacerated, and she was greatly bruised in her person, especially in her arms and side." and defendant. instead of making a motion to require plaintiff been held that an allegation of a specific injury "and other injuries," though indefinite and uncertain as to what was included in the term "other injuries," was sufficiently suggestive to render evidence admissible to prove injuries other than one specifically described.* A declaration setting out the manner in which plaintiff was injured in a street-railroad accident, and alleging that by reason of a fall sustained by her she was badly injured, so that she suffered and continues to suffer and will continue to suffer great pain and will be permanently injured, and that the fall also caused great mental shame and distress, was held sufficient to withstand a motion to dismiss for vagueness, uncertainty, and indefiniteness made at the trial term. The amount of damages recoverable being a matter for the determination of the jury, it is not necessary to allege the amount of damages for each item of injury claimed to have been sustained. There is an exception to this rule where the injuries are of a diverse character,—as in a case of a personal injury and an injury to property suffered as a result of the same negligent act, in which case, good pleading requires a separate averment of the amount of damages claimed." 5 § 7601. General and Special Damages.-In pleading the damages alleged to have resulted from the injury, in an action of tort, the distinction between general and special damages should be carefully noted. "General damages are such as the law implies, or presumes to have accrued from the wrong complained of. Special damages are such as really took place and are not implied by law, and are either superadded to general damages arising from an act injurious in itself, * or are such as arise from an act indifferent and not actionable in itself, but injurious only in its consequences." The primary and principal object of pleading is the formation of an issue; in other words, to apprise the court and the opposite party of the facts constituting the cause of action or the ground of defense, as the case * to make her petition more specific, filed an answer denying that plaintiff was injured as alleged, or at all, evidence of injury to plaintiff's spinal cord and to her eyes was admissible: Louisville &c. R. Co. v. Richmond (Ky.), 23 Ky. L. Rep. 2394; s. c. 67 S. W. Rep. 25. Mauch v. Hartford, 112 Wis. 40; s. c. 87 N. W. Rep. 816. James v. Atlanta St. R. Co., 90 Ga. 695; s. c. 16 S. E. Rep. 642. в Sloane v. Southern California R. Co., 111 Cal. 668; s. c. 32 L. R. A. 193; 44 Pac. Rep. 320; Furbush &c. Mach. Co. v. Buchsbaum, 34 W. N. C. (Pa.) 147; Nokken V. Avery Man. Co., 11 N. D. 399; s. c. 92 N. Foerst v. Kelso, 131 Cal. 376; s. c. 63 Pac. Rep. 681. Where a complaint alleges an accident in which plaintiff received personal injuries, and had a horse killed and a carriage destroyed, but does not allege any damage from the loss of the horse and carriage, evidence of the value thereof is inadmissible: Freeland v. Brooklyn Heights R. Co., 54 App. Div. (N. Y.) 90; s. c. 66 N. Y. Supp. 321. 1 Chitty's Pl. 411. See also, ante, § 7159. may be. Hence arises the distinction between general and special damages. If the damages are of a character so inseparable from the injury that the law presumes that they will follow and flow from it as the natural and necessary consequence of it, there is no occasion for such special averments. But where such damages are the legal and natural consequence of the injury, but do not flow from it as a necessary consequence, they must be alleged, in order that the defendant may know that it is intended to hold him liable for them, and be prepared to defend to the best advantage. Therefore "special damage must be stated with great particularity, in order that the defendant may be enabled to meet the charge if it be false; and if it be not so stated, it cannot be given in evidence." Thus, where it was sought to give in evidence the plaintiff's occupation and mode of earning a living, and that she was prevented from pursuing it in consequence of the injury, such testimony was held inadmissible, because there was no special allegation of such damage. 10 So, testimony of a railway employé suing for personal injuries, that his capacity to have sexual intercourse had been greatly impaired by his injury, was refused where his petition did not allege any injury to have been inflicted upon any organ or member of his body from which such impairment would naturally follow.11 So, it was held that a recovery for rheumatism augmented by a personal injury could not be upheld under an allegation of physical hurt resulting in soreness and lameness.12 And so, the special damages resulting from a seller's failure to deliver an article for which there is no market or which cannot be replaced, will not be allowed unless sufficiently alleged and proved.13 But unless it is sought to recover special damages, it is not necessary, in an action for personal injuries, that the injuries received by the plaintiff should be particularly described in the declaration. It is enough if it is shown that the plaintiff received a bodily injury.14 '1 Chitty's Pl. 414. See also, Tomlinson v. Derby, 43 Conn. 562; Chicago v. O'Brennan, 65 Ill. 160; Shadock v. Alpine Plank-Road Co., 79 Mich. 7; s. c. 44 N. W. Rep. 158; Gulf &c. R. Co. v. Dunman (Tex. Civ. App.), 31 S. W. Rep. 1070 (no off. rep.). In an action by a married woman for personal injuries, evidence that she was carrying on a separate business is inadmissible in the absence of allegations of special damage: Woolsey v. Ellenville, 39 N. Y. St. Rep. 744; s. c. 15 N. Y. Supp. 647. 10 Baldwin v. Western R. Co., 4 Gray (Mass.) 333. 11 Campbell v. Cook, 86 Tex. 630; s. c. 26 S. W. Rep. 486, rev'g s. c. 13 Brady v. Cassidy, 9 Misc. (N. Y.) 107; s. c. 29 N. Y. Supp. 45; 59 N. Y. St. Rep. 729. "Corey v. Bath, 35 N. H. 530; Brown v. Byroads, 47 Ind. 435; Palmer v. Michigan &c. R. Co., 93 Mich. 363; s. c. 53 N. W. Rep. 397. An averment that plaintiff's leg was crushed and dislocated is sufficient to admit evidence of an injury to his hip: St. Louis &c. R. Co. v. Kelton, 28 Tex. Civ. App. 137; s. c. 66 S. W. Rep. 887. been held that an allegation of a specific injury "and other injuries," though indefinite and uncertain as to what was included in the term "other injuries," was sufficiently suggestive to render evidence admissible to prove injuries other than one specifically described. A declaration setting out the manner in which plaintiff was injured in a street-railroad accident, and alleging that by reason of a fall sustained by her she was badly injured, so that she suffered and continues to suffer and will continue to suffer great pain and will be permanently injured, and that the fall also caused great mental shame and distress, was held sufficient to withstand a motion to dismiss for vagueness, uncertainty, and indefiniteness made at the trial term. The amount of damages recoverable being a matter for the determination of the jury, it is not necessary to allege the amount of damages for each item of injury claimed to have been sustained. There is an exception to this rule where the injuries are of a diverse character,—as in a case of a personal injury and an injury to property suffered as a result of the same negligent act, in which case, good pleading requires a separate averment of the amount of damages claimed." § 7601. General and Special Damages. In pleading the damages alleged to have resulted from the injury, in an action of tort, the distinction between general and special damages should be carefully noted. "General damages are such as the law implies, or presumes to have accrued from the wrong complained of. Special damages are such as really took place and are not implied by law, and are either superadded to general damages arising from an act injurious in itself, * or are such as arise from an act indifferent and not actionable in itself, but injurious only in its consequences." The primary and principal object of pleading is the formation of an issue; in other words, to apprise the court and the opposite party of the facts constituting the cause of action or the ground of defense, as the case * ** to make her petition more specific, filed an answer denying that plaintiff was injured as alleged, or at all, evidence of injury to plaintiff's spinal cord and to her eyes was admissible: Louisville &c. R. Co. v. Richmond (Ky.), 23 Ky. L. Rep. 2394; s. c. 67 S. W. Rep. 25. 4 Mauch v. Hartford, 112 Wis. 40; s. c. 87 N. W. Rep. 816. Man. Co., 11 N. D. 399; s. c. 92 N. Foerst v. Kelso, 131 Cal. 376; s. c. 63 Pac. Rep. 681. Where a complaint alleges an accident in which plaintiff received personal injuries, and had a horse killed and a carriage destroyed, but does not allege any damage from the loss of the horse and carriage, evidence of the James v. Atlanta St. R. Co., 90 value thereof is inadmissible: FreeGa. 695; s. c. 16 S. E. Rep. 642. Sloane v. Southern California R. Co., 111 Cal. 668; s. c. 32 L. R. A. 193; 44 Pac. Rep. 320; Furbush &c. Mach. Co. v. Buchsbaum, 34 W. N. C. (Pa.) 147; Nokken V. Avery land v. Brooklyn Heights R. Co., 54 App. Div. (N. Y.) 90; s. c. 66 N. Y. Supp. 321. 1 Chitty's Pl. 411. See also, ante, § 7159. may be. Hence arises the distinction between general and special damages. If the damages are of a character so inseparable from the injury that the law presumes that they will follow and flow from it as the natural and necessary consequence of it, there is no occasion for such special averments. But where such damages are the legal and natural consequence of the injury, but do not flow from it as a necessary consequence, they must be alleged, in order that the defendant may know that it is intended to hold him liable for them, and be prepared to defend to the best advantage. Therefore "special damage must be stated with great particularity, in order that the defendant may be enabled to meet the charge if it be false; and if it be not so stated, it cannot be given in evidence." Thus, where it was sought to give in evidence the plaintiff's occupation and mode of earning a living, and that she was prevented from pursuing it in consequence of the injury, such testimony was held inadmissible, because there was no special allegation of such damage.10 So, testimony of a railway employé suing for personal injuries, that his capacity to have sexual intercourse had been greatly impaired by his injury, was refused where his petition did not allege any injury to have been inflicted upon any organ or member of his body from which such impairment would naturally follow.11 So, it was held that a recovery for rheumatism augmented by a personal injury could not be upheld under an allegation of physical hurt resulting in soreness and lameness.12 And so, the special damages resulting from a seller's failure to deliver an article for which there is no market or which cannot be replaced, will not be allowed unless sufficiently alleged and proved.13 But unless it is sought to recover special damages, it is not necessary, in an action for personal injuries, that the injuries received by the plaintiff should be particularly described in the declaration. It is enough if it is shown that the plaintiff received a bodily injury.14 '1 Chitty's Pl. 414. See also, Tomlinson v. Derby, 43 Conn. 562; Chicago v. O'Brennan, 65 Ill. 160; Shadock v. Alpine Plank-Road Co., 79 Mich. 7; s. c. 44 N. W. Rep. 158; Gulf &c. R. Co. v. Dunman (Tex. Civ. App.), 31 S. W. Rep. 1070 (no off. rep.). In an action by a married woman for personal injuries, evidence that she was carrying on a separate business is inadmissible in the absence of allegations of special damage: Woolsey v. Ellenville, 39 N. Y. St. Rep. 744; s. c. 15 N. Y. Supp. 647. 10 Baldwin v. Western R. Co., 4 Gray (Mass.) 333. 21 Campbell v. Cook, 86 Tex. 630; s. c. 26 S. W. Rep. 486, rev'g s. c. (Tex. Civ. App.), 24 S. W. Rep. 977. 12 Hall v. Cadillac, 114 Mich. 99; s. c. 73 N. W. Rep. 33; 4 Det. L. N. 499. 18 1 Brady v. Cassidy, 9 Misc. (N. Y.) 107; s. c. 29 N. Y. Supp. 45; 59 N. Y. St. Rep. 729. 14 Corey v. Bath, 35 N. H. 530; Brown v. Byroads, 47 Ind. 435; Palmer v. Michigan &c. R. Co., 93 Mich. 363; s. c. 53 N. W. Rep. 397. An averment that plaintiff's leg was crushed and dislocated is sufficient to admit evidence of an injury to his hip: St. Louis &c. R. Co. v. Kelton, 28 Tex. Civ. App. 137; s. c. 66 S. W. Rep. 887. |