
    Orton P. Ward, Appellant, against James C. Haws, Respondent.
    APPEAL PROM THE DISTRICT COURT OP G00DIIUE COÜNTY.
    la aa action for an assault and battery, tlie Plaintiff alleged, as special damages, that he ,e was forced and obliged to pay and expend a large sum of money in and about endeavoring to be cured,” &c> Upon the trial he proved by his physician that his (the physician's) services were worth six or seven dollars; that they had not been paid for by Plaintiff, but were charged to him. Held inadmissible under the complaint. The allegation that expenses had been paid, is not sustained by proof that they had been incurred, and not paid.
    Points and Authorities of Appellant.
    I. — The Court below erred in admitting the testimony of Dr. Hawley as to the amount of his bill for medical services.
    1st. — Because the allegation of special damages in the complaint is so indefinite and uncertain as to whom, as well as to the amount of money paid out and expended, that no evidence of any sum of money actually paid out and expended by the Plaintiff, in and about being cured, could have been admitted under it. 1 GMtty’s PI., 399/ 1 Scmd. Pep., 248, 0. IF., 5/ Pul. Wi. Pri., J.
    2d. — Because there was no allegation that the Plaintiff had suffered damages on account of having incurred liabilities in and about endeavoring to be cured of said wound. 1 Chitty’s PI., 396/ 1 Scmd. Pep., 243/ O. IF., 5/ Slack vs. Brown, 13-Wend., 390/ Vmsantvoord’s PI., 316; Bogert vs. Barkhal-ter, 2 Ba/rb. 8. Oh. Pep., 525; Strange vs. Mannvng, et al., 12 
      Wend., 64/ 1 Stephens’ Nisi Prius, 225/ Pritohel vs. Bowey, 1 Oromp. & Mason’s Pep., 775.
    DaNiels & Geant, Counsel for Appellant.]
    Warren Bristol, Counsel for Despondent.
   By the Qov/rt

Elandrau, J.

Tbe complaint was in tbe ordinary form for an assault and battery, and alleged by way of special damages, that tbe said Plaintiff was forced and obliged .to, and necessarily did pay, lay out and expend a large sum of money in and about endeavoring to be cured of tbe wound, sickness, soreness,” &c. On tbe trial, after proving tbe assault and tbe battery, tbe Plaintiff called as a witness tbe physician wbo had dressed bis wound, and propounded to him this question :

“ "What is tbe amount of your bill against tbe Plaintiff for your services, occasioned by such wound ?”

Tbe question was objected to as irrelevant and immaterial, but tbe Court allowed tbe witness to answer, and be said bis services were worth six or seven dollars, and were not paid by tbe Plaintiff, but were charged against him on bis boobs.

Tbe jury found a verdict for tbe Plaintiff on tbe whole case, tbe amount of which does not in any manner appear in tbe papers furnished the Court, which omission would justify us in bolding tbe damages to have been nominal only, bad tbe respondent made tbe point; but as tbe argument proceeded qpon the fact, as stated by both counsel, that tbe damages were some seventy or eighty dollars, (I cannot distinctly remember tbe amount,) we will accept their admissions for the record.

As tbe object of stating special damage is to let tbe Defendant know what charges be. must prepare to meet, tbe statement must always be as full and specific as tbe facts will admit of.” Mct/yne on the La/io of Damages, 316-18, Yol. 67, Zaw Library, kth series. The facts are in the knowledge of tbe Plaintiff, and be must state them specifically and truly. An allegation that expenses have been paid, is not sustained by proof that they have been inourred and not paid.

In an action for false imprisonment, where it was laid as special damage that the Plaintiff bad been forced to pay a large sum of money for costs, and the evidence was that be had employed an attorney, but not paid him, it was held that the damage was not proved. Pritchet vs. Boevey, 1 C. & M., 775; Jones vs. Lewis, 9 Dowl., 143; Mayne on the Law of Damages, 318.

"We think the Court erred in permitting this proof to go to the jury under the pleadings and objection of the defendant.

"We have examined the other points made by the Appellant, and find no error in any of them.

We are bound to suppose that the jury allowed the physician’s bill in the assessment of the damages, which will entitle the Defendant to a re-trial if the Plaintiff will not remit the amount on the verdict. We therefore order, that the order denying a new trial be set aside, and a new trial be granted, unless the Plaintiff remits seven dollars upon the verdict within twenty days after the service upon him of the order to be entered herein.

The Appellant is entitled to the costs of this Court.  