
    No. 60
    NASH-WOODLAND MOTOR CO. v. LUSK
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7378.
    Decided Jan. 17, 1927
    Judges Mauck, Sayre & Middleton, 4th Dist., sitting.
    355. DAMAGES — In an endeavor to recover damages without pleading same, it is required that such damages must naturally and necessarily follow the injury and the act described in the pleading.
    923. PLEADINGS — Charge upon the question of impairment of ability to earn wages where no damage of that kind was pleaded and no evidence adduced in support of that claim, constitutes error.
    Attorneys — Davis, Young & Vrooman for Company; Stephen M. Young for Lusk; all of Cleveland.
   MIDDLETON, J.

Charles Lusk recovered a judgment against the Nash Woodland Motor Sales Co. in the Cuyahoga common Pleas in the sum of $5000 as damages for certain personal injuries claimed to have resulted from a collision of an automobile driven by him and one owned and operated by the company.

Error was prosecuted to reverse this judgment on the ground that the verdict was excessive and that error existed in the-charge of the court as to the measure of damages. The Court of Appeals held:

1. The evidence relied on to impeach the verdict on the ground of its being excessive, merely goes to the probative value of the evidence adduced by Lusk in respect to the character and extent of the injuries claimed to have been sustained.

2. It is insisted that a part of the court’s charge referring to impaired ability to earn wages was erroneous for the reason that no damage of that kind was pleaded in the petition and no evidence was adduced in support of such claim.

3. This part of the charge injected into the case a question not made by the pleadings or the evidence and the jury, after having had its attention directed to it, may have considered that the injuries disclosed by the evidence.were sufficient to affect Lusk’s ability to earn wages in the future, and made allowance therefor.

4. The rule permitting a recovery of damages without pleading same, requirets that such damages not only naturally but necessarily must follow the injury and the act described in the pleading. 14 OA. 389.

5. No injuries were described in the petition in the instant case from which it may be conclusively presumed or implied that impair - ability to earn a living would necessarily result.

6. Therefore if Lusk expected to recover for such disability, he should have pleaded it; and the instruction in this particular was not proper under the pleadings or the evidence.

Judgment reversed and cause remanded.

(Mauck, PJ., and Sayre, J., concur.)  