Paisley v. Western New York & P. Traction Co.

[1,2] The pleader may content himself with a general allegation of personal injury, and under such pleading he is at liberty to prove any injury caused by or resulting from the accident. The defendant may restrict plaintiffs proof by requiring a more definite or certain complaint, or a bill of particulars specifying the injuries. The com: plaint in this case makes the general allegation of serious injury about her person, followed by the words “and particularly,” etc., reciting specific ailments. This form of pleading answers the same purpose as when the form of general pleading is used, and afterwards the “particulars” are called for by motion. In other words, the “particulars” are furnished in the pleading, and it must be restricted to those specified. Kleiner v. Third Ave. R. R. Co., 162 N. Y. 193 , 56 N. E. 497 .

[3] In this case, however, plaintiff’s doctor is permitted to testify of this uterine condition, without objection from the defendant, and that the accident was the adequate cause of it, and the question arises as to whether or not this evidence should be stricken from the record on motion at the close of the case. It would have been competent and proper evidence if the pleading or bill of particulars had comprehended it. When received without objection, the court has no right to interpose, because it does not appear but that it may have been in the mind of counsel for defendant that, inasmuch as an amendment of the pleadings might have been allowed, if requested, it would be as well to permit the reception of the evidence rather than to ask for the withdrawal of a juror on the ground of surprise, and thus" be put to an adjournment and a retrial of the whole case. This would be good practice, following the suggestion of Chief Judge Cullen in his dissenting opinion in Keefe v. Lee, 197 N. Y. 69 , 90 N. E. 344 . In that case “there are no general words in the complaint to permit of proof of any bodily injury resulting from the accident, as in the Ehrgott Case” ( 96 N. Y. 264 , 48 Am. Rep. 622 ), and the court reversed the judgment because evidence was admitted, under objection and exception, of injury which was not alleged in the complaint. Even in that case, where objection was made and exception taken, two judges concurred with Cullen, C. J., in saying:

“That the plaintiff was entitled to recover compensation for injury to his hearing, if such were the fact, is unquestioned, and that the evidence received was competent to prove the fact was also unquestioned. If there was error in admitting the evidence, it was simply because the plaintiff had failed to allege in his complaint-that the injury he had received had affected his hearing. * * * If, however, it was conceded that under strict rules the plaintiff should have alleged injury to his hearing, the error is not sufficient to justify a reversal of the judgment. Contrary to the general prevailing, popular belief this court, in its decisions, constantly ignores technical errors not affecting the substantial rights of the parties, often far more serious than in this case. That this error was trivial was apparent. The verdict is small. On a reversal of this judgment the plaintiff can be allowed to amend his complaint so as to state that the injury had made him deaf, and if he proves the fact will be entitled to recover therefor. The only effect of our decision will be to protract the litigation and entail additional expense on both the parties and the public.”

This testimony complained of was discussed before the jury, and the charge refers to the proposition as to whether or not the uterine

trouble existed before the accident. The contention of the defendant was certainly entitled to serious consideration, and it appears clear that the verdict rendered would not be warranted, except for the acceptance by the jury of the proof of the uterine trouble; but it was a question for the jury, and with their determination, in the circumstances, the court should not interfere.

The motion for a new trial is therefore denied.