
    MARY LYNCH, Respondent v. THE THIRD AVENUE RAILROAD COMPANY, Appellant.
    
      Negligence, action to recover damages for injuries caused thereby—Exceptions to evidence received on the trial under objection.
    
    In this ease there were many objections to testimony offered by the plaintiff which were overruled and the testimony received and exceptions taken. The allegations of injury and damage in the complaint were as follows : “ and that by reason of the carelessness of the said defendant, its agents, servants and employees, this plaintiff sustained serious damage both to her person and her property, and was obliged to, and actually did incur liability for surgical and other treatment and attendance in seeking to restore herself of her injury, to her damage five thousand dollars.”
    Dr. Jennings, who attended the plaintiff, was a witness on the stand on the part of plaintiff, and during his examination was asked the following question by plaintiff’s counsel. Q. Is the injury which she has received to her back and spine, in your opinion, a permanent injury ? Objected to as not pleaded in the complaint. Objection overruled and defendant excepts. The witness answered, I believe the injury to her back is permanent—progressing. By progressing I mean that she is now just in about the second stage of paralysis to that limb, you might call it. Held, that none of the exceptions taken to the admission or exclusion of evidence, is, under all the circumstances, of sufficient importance to call for a reversal, and, upon the whole ease, no valid reason appears for disturbing the verdict. Ingraham, J., dissenting.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided February 4, 1891.
    Appeal from judgment entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.
    
      Hoadly, Lauterbach & Johnson, attorneys, and William A. Cohen of counsel, for appellant, argued:—
    
      That the court erred in allowing the question put to plaintiff’s witness, Dr. Jennings, and that the evidence was inadmissible under the pleadings, reviewing the following cases. In Stevens v. Rodger M’f’g Co., 25 Hun, 54 (Fourth Dep’t, Mullen, Talcott and Smith, JJ.), the facts are stated thus (p. 54): “The action was brought to recover damages for an assault and battery. The gravamen of the charge in the complaint was that defendant struck the plaintiff with his clenched fist, in her face, upon her right cheekbone, and cracked the bone of the cheek and loosened the bones under the plaintiff’s skull. At the trial the plaintiff was permitted to give evidence tending to show that paralysis of the right arm had resulted from the blow. The testimony was objected to on the ground that the particular injury thereby attempted to be shown -was not specified in the complaint. The objection was overruled and defendant excepted.” Whereupon Judge Smith says (pp. 54 and 55): “We think the objection to the evidence was overruled erroneously. The general rule is that special damages, that is, such as, although the natural, are not the necessary result of the act complained of, and consequently are not implied by the law, must be particularly stated in the complaint, in order to prevent a surprise upon the defendant, or the plaintiff will not be permitted to give evidence of them at the trial. 1 Ch., Pl. [14th Am. ed.], 338, 396; 2 Gr. Ev., § 254; Armstrong v. Percy, 5 Wend. 538; Squier v. Gould, 14 Ib. 159. The rule is a salutary one and it applies with full force under the Code. Doubtless the trial court had power to allow an amendment of the complaint, upon proper terms, by asserting an allegation of the special damage sought to be proved, but no amendment was ordered and none was asked for. The correctness of the ruling is to be tested, therefore, on the complaint as it stood, not as it might have been changed by amendment.
    
      Tooker v. Arnoux, 76 N. Y. 397.” In Uertz v. Singer M’f g Co., 35 Hun, 116 (Fourth Department), Judge Follett, with whom concur his colleagues, Hardman and Boardman, JJ., says (p. 117): “ It is not alleged in the complaint that the injuries sustained by the wife are permanent, or that she will be less able, in the future, to render services by reason of the injuries, nor is it alleged that erysipelas or any unusual condition ensued from the injuries, and evidence of these facts was inadmissible under the complaint had it been objected to on that ground. Gilligan v. N. Y. & Harlem R. R. Co., 1 E. D. Smith, 453; Stephens v. Rodger M'f'g Co., 25 Hun, 54; Whitney v. Hitchcock, 4 Den. 461; 2 Thompson on Negligence, 1250, §§ 32, 33; 2 Sedge, on Dam. [7th ed.], 606; 1 Chitty’s Pldgs. [16 Am. ed.], 411, 515; Mayne on Damages, Chap. 17; Heard’s Civil Pldgs., 310 to 314.” As Judge Earl says in Southwick v. Bank of Memphis, 84 N. Y. 420, 429, “It is no answer to this objection that the defendant was probably not misled in his defence. A defendant may learn outside of the complaint what he is sued for, and thus may be ready to meet the plaintiff’s claim upon the trial. He may even know precisely what he is sued for, when the summons alone is served upon him. Yet it is his right to have a complaint, to learn from that, what he is sued for, and to insist that that shall state the cause of action which he is called upon to answer.” Again in Romeyn v. Sickles, 108 N. Y. 650, Chief Justice Ruder, having stated that (p. 652,) “It is a fundamental rule that judgment shall be secundum allegata et probata, and as was said in Day v. Town of New Lots, 107 N. Y. 148, ‘any departure from that rule is certain to produce surprise, confusion and injustice,”’ continues thus (p.653): “There are cases which, having proceeded in disregard of the pleadings, and wherein the whole case has been presented by both parties in their proofs without objection, in which an amendment has been allowed, after the evidence is closed, to conform pleadings to the proofs; so, also, where the court can see that a trial has been had upon the real issue without objection, it will not disturb a recovery on the ground that it was not embraced in the pleadings; but when the objection has been properly taken, or an exception presents the question, it is fatal to a recovery that it does not conform in all material respects to the allegations of the pleadings.”
    If plaintiff claim, as with show of reason it seems to us she cannot, that the language of the complaint is possibly broad enough to cover permanent damages, it is a conclusive answer, that any doubt must be solved in favor of the defendant in accordance with the long established maxim of contra proferentem, or that language, especially in pleadings, is to be construed against him who furnishes the phraseology thereof. Nor at the present day has this ancient rule been at all relaxed, as Chief Justice Either says in Clark v. Dillon, 97 N. Y. 370, 373. It matters not that the court believes the evidence was not calculated to affect the jury in any great degree. As Judge Allen says (p. 187), in Baird v. Gillett, 47 N. Y. 186, “ The evidence was improper; and, as the court cannot say that it might not have * * * influenced the result, its admission under objection was error, for which the judgment should be reversed.” To the same effect are Williams v. Fitch, 18 N. Y. 546 ; Canaday v. Krum, 83 Ib. 67. Indeed, if the evidence could in any degree and by any possibility have affected the jury’s verdict, the court will presume that it did. Furst v. Second Ave. R. R. Co., 72 N. Y. 542-7.
    
      Henry W. Bates, attorney and of counsel, for respondent, argued:—
    At folio 8 the complaint reads as follows : “ and that by reason of the carelessness of the said defendant, its agents, servants and employees, this plaintiff sustained serious damage both to her person and to her property.” Under this allegation of serious damage it was competent to show that the damage was permanent. All serious damages are not permanent, and all permanent damages are not necessarily serious. A serious damage or injury may be recoverable or permanent in its character, and to show the measure of the damage it is proper to introduce expert evidence and to inquire under the term “ serious ” whether an injury is permanent. To show the nature and extent of the injury and suffering, it is competent to give evidence of their continuing effect up to the time of the trial. Sheehan v Edgar, 58 N. Y. 631, and cases cited, and their probable effect in the future. Caldwell v. Murphy, 1 Duer, 233; 11 N. Y. 416; 31 Ib. 314.
   By the Court.—Freedman, J.

The action was brought to recover damages for personal injuries sustained by the plaintiff, in attempting to get on board of one of the cars of the defendant. Upon the testimony of the plaintiff the case was one for the jury, and the trial judge properly refused to dismiss the complaint or to direct a verdict. There is no exception to the charge, or to any refusal to charge otherwise. None of the exceptions taken to the admission or exclusion of evidence is, under all the circumstances, of sufficient importance to call for reversal, and upon the whole case no valid reason appears for disturbing the verdict.

The judgment and order should be affirmed with costs.

Sedgwick, Ch. J., concurred.

Ingraham, J. (dissenting).

I think the objection to the question asked Dr. Jennings, the medical expert called for the plaintiff, as to the permanent character of the injury, should have been sustained. The only allegation in the complaint as to the character of the injury, is that plaintiff “ sustained serious damage to her person and property.” There is no allegation that the injury caused pain and suffering, or that the injury was permanent, or that she was, at the time of the commencement of the action, suffering from the effects of the injury. No fact is alleged from which the inference can be drawn that there was any permanent impairment of her physical condition. The objection to the question was that it was not pleaded in the complaint. That objection was overruled and defendant excepted.

It cannot be said that permanent or progressive paralysis is the necessary or usual result of such an injury as is described in the complaint, and the complaint does not allege that such a result followed from the injury, or such a disease was caused by the act complained of. It is the damage sustained before the commencement of the action which the plaintiff alleges amounted to' $5,000, and such damage is alleged to have been caused by the injury to her person and property, and because she was obliged to and did incur liability for surgical and other treatment and attendance in seeking to restore herself of her injury.”

There is not the slightest indication given to the defendant by these allegations of the complaint that the injury caused by the act complained of was of such a nature as to interfere with the future use by the plaintiff of her physical faculties, and it left the defendant unprepared to meet the proof offered to sustain such an issue.

General damage is defined as that which necessarily and by implication of law results from the act or default complained of: special damages such as arise directly but not necessarily or by implication of law from the act or default complained of. 1 Bouvier’s Law Dictionary, p. 467.

In Chitty on Pleading, vol. I, p. 428, general damages are defined as 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.

In 2d Greenleaf on Evidence, § 254, it is said, “Those which necessarily result are termed general damages, being shown under the ad damnum or general allegation of damages at the end of the declaration, for the defendant must be presumed to be aware of the necessary consequences of his conduct and, therefore, cannot be taken by surprise in the proof, of them. . . But where the damages, though the natural consequences of the act complained of. are not the necessary result of it, they are, however, special damages which the law does not imply, and, therefore, in order to prevent a surprise upon the defendant they must be particularly specified in the declaration or the plaintiff will not be permitted to give evidence of them at the trial.”

The distinction between special and general damages in cases of this character is stated in Gumb v. Twenty-third Street R. R. Co., 114 N. Y. 414, “ where a plaintiff alleges that his person has been injured and proves the allegation, the law implies damage, and he may recover such as reasonably flow from the injury (which are called general damages) under a general allegation that damages were sustained ; but if he seeks to recover damages from consequences which do not necessarily and immediately flow from the injury (which are called special damages) he must allege the special damages which he seeks to recover.”

Judge Smith, in Stevens v. Rodger, 25 Hun, 54, says, “ The general rule is that special damages, that is, such as although the natural are not the necessary result of the act complained of, and consequently are not implied by the law, must be particularly stated in the complaint in order to prevent a surprise upon the defendant, or the plaintiff will not be permitted to give evidence of them at the trial. See also Armstrong v. Percy, 5 Wend. 535.

It appears from these authorities that the damages that may be proved under the general allegation of damages are such as are implied by law, and that the law implies only such as necessarily result from the act complained of. It is not enough that the damage sought to be proved may directly result from the injury, but the damage must be the necessary result so that such result can be implied by law.

I do not think that the necessary result of a person being dragged behind a street car which causes serious damage to his person and property is a permanent injury to the person, or that from such an act the law could imply such permanent injury. It would of course be different if the complaint alleged that the act caused the loss of a limb or another injury of that character, for in that case it would necessarily follow that the loss of the limb would be permanent.

I think, therefore, that the judgment must be reversed and a new trial ordered, with costs to abide the event.  