Irby v. Wilde

TYSON, C. J. This action was brought to recover damages for an assault and battery alleged to have been committed by defendant upon the plaintiff. The complaint is in the Code form, and is in this language: “The plaintiff claims of the defendant twenty-five hundred dollars, damages for an assault and battery committed by defendant on the plaintiff, viz., on or about the 8th day of February, 1906.” Against the defendant’s objection the plaintiff was permitted to Drove that he lost 10 days from his occupation or business, and that this lost time was reasonably worth $4 per day, and also that he employed a physician to treat his wounds, whose services were reasonably worth $10, which he paid. The grounds of objection interposed to this testimony was that the damages proven were special, as distinguished from mineral, damages, and were, not, therefore, claimed in the complaint. In other words, the question raised is whGlmr. under the allegations of the complaint, alihoueh :n flic [404] form prescribed by the Code, the plaintiff is limited in his recovery, to general damages; and, if so, was the value of his lost time and of the -physician’s services within that class? Or,-if they, are special damages, are they recoverable, unless alleged and claimed in the complaint? Since the decision of Lewis v. Paull, 42 Ala. 138, it has been uniformly held by this court that the Code form does not dispense with the averment'of special damages, whenever they are necessary to be averred at common law, in order to entitle a party to recover them. In Dothard v. Sheid, 69 Ala. 135, it is said: “The form of complaint laid down in .the Code was designed only to cover general damages, or such as necessarily result, and which the law implies, from the injury complained of; the defendant being presumed to be aware of the necessary consequences of his conduct, and therefore not liable to surprise in the proof of them.” See, also, Pollock v. Gantt, 69 Ala. 373, 44 Am. Rep. 519; Ross v. Malone, 97 Ala. 529, 12 South. 182. In the latter case cited special damages were not allowed to be recovered, because not alleged in the complaint although in Code form. The quotation above from Dothard v. Sheid, is -a correct statement of the common-law rule with respect to the recovery of general damages, where the complaint contains no more than a general allegation of damages. If we may be pardoned for repetition, we will restate the rule as collated from numerous cases by the author of the article-on the subject of damages as found in 5 Ency. of Pl. & Pr. pp. 717-719: “General damages are such damages as the law holds to he the necessary result of the-cause of action set forth in the declaration or compláint, need not be specially pleaded, but may be recovered under the general allegation of damage. The defendant is presumed to know the damages which necessarily result from his own acts, and consequently he cannot be taken by surprise, when evidence of such resulting damage is admitted and shown under the; ad damnum or general allegation of damage. * * * ■ Special damages, which are the natural, but not necessary, result of the injury complained of, must be specially alleged. Such injuries [405] do not necessarily result from the defendant’s wrongful act, but flow from it as a natural and proximate consequence; hence they must be specially alleged, in order that the defendant may have notice thereof and be prepared to meet the same upon the trial.” We entertain the opinion that the damages under consideration, which were alloAved to be proven, Avere not general, but special, damages — not the necessary result of the assault and battery, as alleged, and, not being alleged, should not have been allowed to be proved. 2 Chitty on Pleading, p. 612; 5 Ency. Pl. & Pr. pp. 751-758; Slaughter v. Metropolitan St. Ry. Co., 58 Am. & Eng. R. Cases, 607; Missouri R. R. Co. v. Dawson, 28 S. W. 1106, 10 Tex. Civ. App. 19. Nor can it be affirmed that physical pain was the. necessary result of the battery alleged. If this is sought to be recoArered as damages, it should be averred. Physical pain may be produced by a battery, but it does not necessarily folioav from every battery. The act of aIolenee may be so slight as not to produce any bodily pain and suffering Avhatevcr, and yet it Avould be actionable, for which general damages could be recovered. Btwersed and remanded. Poavdell, Anderson, and McClellan, JJ., concur.