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App.]

Cincinnati Traction Co. v. Smith.

hands, head, face, arms and hips, and producing great shock to his entire nervous system. From all of which he became sick, sore and lame, and has been so ever since, and has been required to seek medical aid, assistance and treatment, for hemorrhages from the head and nose of plaintiff, which were caused by reason of the bruises and injuries to his face and head, so received as aforesaid. And is still suffering physical pain and anguish therefrom."

The portion italicized was not included in the original petition.

The testimony as to the hemorrhages might have been received under the general allegation of injuries to face and head. It is true that the testimony shows these symptoms developed some time after the injuries to the head and face, but the testimony was to the effect that they were a probable result of such injuries. This is rather the insertion of an allegation material to the case in an amendment which does not substantially change the claim, hence, it was not an abuse of discretion, nor an error, for the court to permit the filing of such amendment and the introduction of testimony thereunder.

The third assignment of error is that the court allowed testimony to be introduced as to earnings, when no claim was made for special damages.

The claim for damages is in general terms. The allegations as to injuries are quoted above. The only question, therefore, is: Was such evidence admissible without a special plea for loss of wages or earnings? The plaintiff, over objection, testified

Cincinnati Traction Co. v. Smith.

[14 Ohio

that he was receiving $5 per day as a carpenter foreman. Under the allegations in the pleadings the introduction of such testimony was erroneous and prejudicial to the plaintiff in error.

*

"Where the damages are of such a nature that they do not follow as a necessary consequence of the injury complained of, they should * be specially pleaded in order to warrant a recovery." 5 Ency. of Pleading and Practice, 733.

"Where the injuries sought to be recovered for do not necessarily result from the wrongful act, and are not such as the defendant would naturally be acquainted with, they must, in order to prevent surprise, be set out in the declaration or complaint, or evidence thereof will be excluded at the trial." Id., 750.

The allegations in the petition do not show permanent disability; nor that the plaintiff suffered or claimed loss of time or wages.

There is nothing to put defendant on notice that loss of earnings is to be claimed.

"Special damages are required to be stated in the declaration for notice to the defendant and to prevent surprise at the trial." 2 Sutherland on Damages (4 ed.), Section 419.

In 4 Sedgwick on Damages (9 ed.), Section 1261, the rule is stated to be:

"All legal damages must, whether the action be in contract or in tort, naturally result from the act or default complained of; and although the law in certain cases permits the recovery of such damages as are physically secondary or consequential, yet they must in legal contemplation be also its proxi

App.]

Cincinnati Traction Co. v. Smith.

mate result. Where such result is necessary, or is legally imported by the facts, the damages are general, and need not be specifically set forth in the pleading; otherwise they must, whether such special damage is or is not essential to the maintenance of the action. In the one case, the statement of the cause of action sufficiently apprises the defendant of the extent of the claim. In the other, legal justice, in order to enable him to prepare his defence, requires the further averment of the injurious consequences.

And in Section 1270 it is said:

"So in an action for personal injuries, proof of damages from the interruption of plaintiff's occupation, and deprivation of his accustomed means of earning support, is inadmissible unless such damages are specially alleged."

The common-law rule is set forth as above in Tomlinson v. Town of Derby, 43 Conn., 562, and Taylor v. Town of Monroe, 43 Conn., 36, at 46.

The case of City of Alliance v. Campbell, 17 C. C., 595, relied on by plaintiff, is based on a quotation from "The first volume of Sedgwick on Damages, page 763: 'Under a general allegation of damages, the plaintiff may prove and recover those damages which naturally and necessarily result from the act complained of, or those damages which the law implies will proceed from it.'"

And the court holds that testimony may be given as to wages without any averment as to special damages. The report of this case does not show what the allegations as to damages were; nor is there anything to show what questions were raised

Cincinnati Traction Co. v. Smith.

[14 Ohio in the supreme court when the case was affirmed without report. We cannot subscribe to the conclusion reached by the court, on this point, in the above case, especially in view of the quotations from the same authority set forth heretofore. The better rule seems to be that sufficient must be alleged to properly apprise the defendant of the claims made. While a general allegation may permit the introduction of testimony as to the physical injuries and suffering naturally flowing from the alleged negligent act, no testimony should be introduced as to earnings unless there is an averment setting forth such matter as a claim for special damages, or other allegations which would show that as a necessary and natural consequence of the injury such damage would be claimed.

The case of Hamilton County Agricultural Society v. Helmann, 14 C. C., N. S., 522, while a case to recover damages for assault and battery, sets forth the rule as to special damages; so also does Stevenson v. Morris, 37 Ohio St., 10. The weight of authority upholds this rule and requires a special averment, as in cases for recovery of doctors' bills.

The defendant was not apprised of this claim by the pleadings, and the introduction of testimony showing earnings of $5 per day was erroneous, and prejudicial to the defendant, now plaintiff in error. The judgment of the court of common pleas will be reversed, and a new trial granted.

Judgment reversed.

HAMILTON, P. J., and CUSHING, J., concur.

App.]

City of Cincinnati v. Butterfield.

THE CITY OF CINCINNATI V. BUTTERFIELD.

Municipal corporations — Negligence — Liability — Governmental or ministerial functions Acts of policeman.

A police officer while engaged in the discharge of his duties is discharging a governmental function and the city is not liable for the acts of negligence committed by such officer while thus engaged.

(Decided June 6, 1921.)

ERROR: Court of Appeals for Hamilton county.

Mr. Saul Zielonka, city solicitor, and Mr. Dennis J. Ryan and Mr. Clifford F. Cordes, assistant city solicitors, for plaintiff in error.

Mr. Edward H. Jones, for defendant in error.

HAMILTON, P. J. The defendant in error, Martha J. Butterfield, recovered a judgment in the court below against the city of Cincinnati in an action for damages for personal injuries alleged to have been caused by a mounted police officer negligently driving his horse against her, throwing her to the ground and injuring her.

It is alleged in the petition:

"She was struck by a horse mounted and driven by and under the control of one Edward Van Dehre, at that time a member of the police force of said defendant, the City of Cincinnati. Said Edward Van Dehre was at the time acting and on duty as mounted patrolman and as such was the agent and in the employ of the defendant."

The answer admits that Van Dehre was at the time a member of the police force of the city of Cin

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