Thus, for example, an allegation that a pole fell, striking plaintiff on the shoulder and collar-bone, breaking the bones thereof and felling him to the pavement, was held sufficient to authorize proof of pain in the muscles without alleging that the muscles were lacerated and injured.15 So, an allegation that the plaintiff "was violently and grievously bruised, mangled, and broken, to wit: in and upon his head, arms, legs, and body and particularly as to the serious injury and wounding of his internal vital organs" has been held sufficiently comprehensive to allow testimony of injuries to the kidneys, urinary organs, and nervous system.18 So, an allegation that plaintiff's arm and limb were greatly hurt, cut, and sprained, bruised, wounded, and injured, and that he was so injured in his arm and limb as to be permanently injured and crippled for life, was held sufficiently specific to admit proof of fracture of the arm.17 So, an allegation that plaintiff's right wrist was dislocated and broken was held sufficient to admit proof that the radius, the large bone of the right fore-arm, was broken just above the wrist joint, the allegation being sufficient to apprisedefendant of the injury sustained.18 And so, it was properly held, in an action to recover for injuries received in a railroad collision, that the aggravation of plaintiff's other injuries due to the fright or nervous shock incident to the collision and its attendant circumstances was a direct and proximate effect of the collision which need not be specially pleaded, but which could be proved under a general allegation of bodily injury.19 In pleading special damages, it is necessary to set out particularly how the damages sought to be recovered accrued. Where the plaintiff in an action against a town for an injury from a defect in a bridge averred in his declaration that he was thereby "prevented from attending to his ordinary business," the court held that he could not show, under this avermnet, that he was earning a hundred dollars a month in carting and sawing timber.20

§ 7602. Permanency of the Injury. It is not required that the complaint should specifically allege that the injuries are permanent where a fair construction of its allegations shows this fact, such damages being regarded as general and not special.21 An allegation that,

15 Southern Bell Teleph. Co. v. Jordan, 87 Ga. 69; s. c. 13 S. E. Rep. 202.

16 Central R. Co. v. Mitchell, 63 Ga. 173.

17 Thompson v. Quincy, 83 Mich. 173; s. c. 10 L. R. A. 734; 47 N. W. Rep. 114.

18 Rock Island v. Cuinely, 126 Ill. 408; s. c. 18 N. E. Rep. 753.

19 Denver &c. R. Co. v. Roller, 100 Fed. Rep. 738.

20 Tomlinson v. Derby, 43 Conn. 562.

21 Lewis v. Independence, 54 Mo. App. 183. An allegation that plaintiff was bruised, hurt, and wounded, and that divers bones of her body were broken, and that she was grievously wounded internally and

by reason of the injuries sustained, the plaintiff has lost the use of a member, will be construed to mean a permanent loss and not a past temporary impairment.22 Where, however, the claim is for a specified period, evidence of a permanent injury will not be received.23 Under an allegation that the injury was serious and lasting, it has been held that the plaintiff's condition a year and five months after the accident could be shown.2

24

§ 7603. Loss of Time and Earnings.-A general allegation of damages for personal injuries is sufficient to authorize a recovery for loss of time or wages without a special averment of such loss. 25 Past and future earnings have been held proper for consideration in allowing damages for injuries due to a defective sidewalk, where the declaration alleged that the plaintiff was prevented from attending to her household and lawful affairs, duties and business during all the time since the injury was received, and was thereby deprived of, and wholly lost, all the advantages and profits to be derived therefrom and thereby, and that, the injury so received being permanent and incurable, she is an invalid for life; and that prior thereto she was a strong and healthy woman, but is now permanently injured and lame and crippled for life.26

$7604. Impairment of Earning Power.-Where the permanent character of injuries is alleged in the complaint, the loss or impairment of capacity to labor or attend to business may be given in evidence without being specially pleaded.27 But when it is sought to

became sick, lame, and disordered, -is sufficient to admit evidence that the injuries had produced permanent sterility and incapacity to enter into the married state: Lake Shore &c. R. Co. v. Ward, 135 Ill. 511; s. c. 26 N. E. Rep. 520; aff'g s. c. 35 Ill. App. 423.

22 Harvard v. Stiles, 54 Neb. 26; s. c. 74 N. W. Rep. 399.

23 French v. Wilkinson, 93 Mich. 322; s. c. 53 N. W. Rep. 530.

"Mogk v. New York &c. Tel. Co., 78 App. Div. (N. Y.) 560; s. c. 79 N. Y. Supp. 685.

25

Slaughter v. Metropolitan Street R. Co., 116 Mo. 269; s. c. 23 S. W. Rep. 760; Hopkins v. Atlantic &c. R. Co., 36 N. H. 12; s. c. 17 Am. Dec. 287; Delaware &c. R. Co. v. Jones, 128 Pa. St. 308; Missouri &c. R. Co. v. Vance (Tex. Civ. App.), 41 S. W. Rep. 167 (no off. rep.). An averment in a petition in an action for

personal injuries that by his injuries the plaintiff has been personally disabled from practicing his profession as a physician and surgeon and has lost and will lose his earnings therefrom, is sufficient to justify a recovery of any damage sustained by loss of practice, although there is no specific and direct averment of any amount of damage sustained by loss of the practice: Mason v. St. Louis &c. R. Co., 75 Mo. App. 1; s. c. 1 Mo. App. Repr. 295.

26 Moore v. Kalamazoo, 109 Mich. 176; s. c. 3 Det. L. N. 52; 66 N. W. Rep. 1089.

27 Treadwell v. Whittier, 80 Cal. 574; s. c. 22 Pac. Rep. 266; 5 L. R. A. 498; 6 Rail, & Corp. L. J. 503; 13 Am. St. Rep. 175; Galveston &c. R. Co. v. Smith (Tex. Civ. App.), 28 S. W. Rep. 110 (no off. rep.). A declaration by a married woman

28

recover for loss of profits or earnings depending upon the performance of some special contract or engagement, these special engagements and the facts on which they are based, must be set out in the complaint. Thus, under an allegation that all of plaintiff's injuries will continue for a long time and prevent her from having free use of her person, and that a portion of the injuries are permanent, that she will not be able to discharge her domestic duties for a very long time, and that her capacity to earn money has been destroyed for a long period of time and permanently decreased one-half, a witness may testify that the condition of plaintiff ten years hence, from present indications, will be that of a confirmed invalid.29 So, in an employe's action against a railroad company for injury, an allegation that a portion of plaintiff's hand was so crushed as to necessitate amputation, and that his capacity to earn money was thereby permanently diminished one-half, has been held sufficient to allow the admission of evidence of his age and capacity to labor without more specific allegations thereon.30

§ 7605. Loss of Wife's Services.-Evidence of the value of the services of a married woman is admissible in a suit by her husband for personal injuries to her without specific averments as to such value, where the petition alleges the character of the injuries received and that they rendered her unable to attend to the ordinary affairs of life.31

§ 7606. Pain and Suffering.-Compensation for pain and suffering arising from the injury itself may be recovered, although not specially alleged, as such damages are classed as general damages.3° Future pain and anguish cannot be considered where these elements are alleged in the past tense only, and where the evidence of the trial does not show permanency of the injury.33

for personal injuries, alleging that she was thereby incapacitated to walk without crutches, embraces by necessary implication the impairment of her capacity to labor: Atlanta Street R. Co. v. Jacobs, 88 Ga. 647; s. c. 15 S. E. Rep. 825.

29 Chicago &c. R. Co. v. Meech, 163 Ill. 305; s. c. 45 N. E. Rep. 290; Beardstown v. Smith, 150 Ill. 169; s. c. 37 N. E. Rep. 211; aff'g s. c. 52 Ill. App. 46.

20 Metropolitan St. R. Co. v. Johnson, 90 Ga. 500; s. c. 16 S. E. Rep.

49.

30 Atlanta &c. R. Co. v. Johnson, 66 Ga. 259.

31 Texas &c. R. Co. v. Burnett, 80 Tex. 536; s. c. 16 S. W. Rep. 320.

32 Chicago City R. Co. v. Taylor, 170 Ill. 49; s. c. 48 N. E. Rep. 831; 9 Am. & Eng. R. Cas. (N. S.) 513; aff'g s. c. 68 Ill. App. 613; Tuomey v. O'Reilly &c. Co., 3 Misc. (N. Y.) 302; s. c. 22 N. Y. Supp. 930; 52 N. Y. St. Rep. 119; Schuler v. Third Ave. R. Co., 1 Misc. (N. Y.) 351; s. c. 48 N. Y. St. Rep. 663; 20 N. Y. Supp. 683.

33 Shultz v. Griffith, 103 Iowa 150; s. c. 40 L. R. A. 117; 72 N. W. Rep. 445.

34

§ 7607. Cost of Cure.-Cost of cure for injuries is regarded as special damages and hence must be particularly pleaded. It has been held, however, that under a bare allegation of medical expenses plaintiff could show liabilities incurred therefor.35 An allegation that the plaintiff "was forced" to expend certain moneys, is equivalent to the allegation that he did expend money for medical expenses.3°

§ 7608. Prospective Damages. In actions for injuries to the person, if the action is by the person injured, it is not necessary that the declaration should contain a special averment of prospective damages to enable a recovery for such damages. Where, however, the plaintiff is the father suing for an injury to his minor son, prospective loss of service must be alleged, or the plaintiff cannot recover such damages. The reason of this distinction is, that in the former instance the gist of the action is the injury to the person, and the prospective damages are considered to be the immediate and natural consequence of the injury. In the latter, the gist of the action is the loss of service which is consequent upon the injury. The injury to the person is the cause only of the loss; and to permit the plaintiff to recover for a loss in nowise alleged, would be to violate a familiar rule that the plaintiff can recover only secundum allegata.37 Thus, where the plaintiff in an action for personal injury framed his declaration on the theory that the ailment complained of was produced by the act alleged and was the direct result of it, and his proofs were produced on the same theory, it was held that his recovery must be limited to the scope of his allegation and proof and could not include damages for the aggravation of a pre-existing infirmity.38 Evidence of future disability is admissible in an action for personal injuries under an allegation that the plaintiff "believes that her injuries will incapacitate her from performing manual labor for the rest of her life,”—particularly where defendant in his answer puts in issue the permanent character of plaintiff's injuries. 39

§ 7609. Exemplary Damages.-Exemplary damages may be awarded if the facts warranting them are stated with sufficient distinctness to inform the defendant that he is required to meet that charge,

The Oriental v. Barclay, 16 Tex. Civ. App. 193; s. c. 41 S. W. Rep. 117.

417.

Chicago v. Edson, 43 Ill. App.

Parker v. Burgess, 64 Vt. 442; s. c. 24 Atl. Rep. 142.

37 Gilligan v. New York &c. R. Co., 1 E. D. Smith (N. Y.) 453.

38 Wilkinson v. Detroit Steel &c. Works, 73 Mich. 405; s. c. 41 N. W. Rep. 490.

39 McFarland V. Muscatine, 98 Iowa 199; s. c. 67 N. W. Rep. 233.

40

though the damages are not claimed eo nomine in the complaint. 10 In South Carolina, it is provided by statute that the plaintiff, in an action ex delicto for actual and punitive damages, shall not be required to make a separate statement of damages under each head.11 In Missouri, it is required that in all actions where punitive damages are recoverable the petition shall particularly state the amount of damages; and this act has been construed not to apply to actions commenced before its passage, though tried thereafter.42

§ 7610. Injuries to Property.-In an action for the destruction of grass by fire, it is not necessary to aver the particular manner in which the plaintiff intended to use the grass to permit evidence of its market value.43 An allegation that the grass was worth a certain sum per acre affords a sufficient basis for estimating the damages resulting from its destruction, as the measure of damages is the market value.11 Permanency of injury to land by flooding is sufficiently alleged by an averment that the fertility of the land has been almost wholly destroyed and the land rendered unfit for agricultural purposes. Under the rule confining the recovery to the claim made by the complaint, evidence of depreciation in the market value of an animal is inadmissible under a declaration which only claims recovery for the loss of its use from the time of the injury to the commencement of the suit. As heretofore pointed out, there is a general disinclination by the courts against the allowance of speculative damages, such as loss of profits, and their recovery is allowed only where they can be proved with some degree of certainty. It follows that they should be counted upon specially.48

47

40 Alabama &c. R. Co. v. Arnold, 84 Ala. 159; s. c. 5 Am. St. Rep. 354; 4 South. Rep. 259; Southern R. Co. v. Phillips, 119 Ga. 146; s. c. 45 S. E. Rep. 967; Jacobs v. Louisville &c. R. Co., 10 Bush (Ky.) 264; Stembridge v. Southern R. Co., 65 S. C. 440; s. c. 43 S. E. Rep.. 968; Richmond Passenger &c. Co. v. Robinson, 100 Va. 394; s. c. 41 S. E. Rep. 719. See also, Glover V. Charleston &c. R. Co., 57 S. C. 228; s. c. 35 S. E. Rep. 510.

41 S. Car. Acts 1898. See Machen v. Western Union Tel. Co., 63 S. C. 363; s. c. 41 S. E. Rep. 448.

42 Lamberson v. Long, 66 Mo. App. 253.

43 Ft. Worth &c. R. Co. v. Wallace, 74 Tex. 581; s. c. 12 S. W. Rep. 227; 40 Am. & Eng. R. Cas. 248.

44 Galveston &c. R. Co. v. Rheiner (Tex. Civ. App.), 25 S. W. Rep. 971 (no off. rep.).

45 Nichols v. Norfolk &c. R. Co., 120 N. C. 495; s. c. 26 S. E. Rep. 643.

46 Chicago &c. R. Co. v. Miller, 79 Ill. App. 473.

47 Ante, § 7202.

48 Silsby v. Michigan Car Co., 95 Mich. 204; s. c. 54 N. W. Rep. 761.