Buce v. Incorporated Town of Eldon

Supreme Court of Iowa

Buce v. Incorporated Town of Eldon

97 N.W. 989, 122 Iowa 92

CourtSupreme Court of Iowa

DecidedJanuary 12, 1904

StatusPublished

Cited by7 cases

This text of 97 N.W. 989 (Buce v. Incorporated Town of Eldon) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Buce v. Incorporated Town of Eldon, 97 N.W. 989, 122 Iowa 92 (iowa 1904).

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Opinion

Sherwin, J.

The jury gave the plaintiff $675, and the appellant contends that the amount is excessive. We do not think so. The plaintiff was certainly seriously injured -ahd confined to her bed for two weeks thereafter, a part of which time she was under the care of a physician. Before receiving the injury, she was a strong, healthy [93]*93woman, entirely free from the acbes and pains which afterwards afflicted her and which continued from the time of the injury up to the trial, a period of a year. Her disability was also suchthatshe was unable to perform many of the usual household duties which she had theretofore attended to.

An instruction was given authorizing a recovery for future pain and suffering, and this is complained of. The evidence tended, at least, to show that the plaintiff had suffered severe pain right up to the time of the trial; and that she had not then fully recovered from the injury. Under such circumstances, the instruction was clearly correct, and there was evidence supporting it. The fact that the pain may have been caused by a physical condition which was not specifically pleaded would not change this result, because such physical, condition was shown without objection to have been the possible result of the fall on the, defendant’s walk. It is a familar rule that, if a case is mutually tried on a theory unsupported by the pleadings, objection cannot thereafter be heard.

The hypothetical question to Dr. Bos was a fair summary of the facts which the plaintiff’s evidence tended to prove, and it was not necessary to embody more therein; hence there was no error in overruling the defendant’s, objection thereto. Bever v. Spangler, 93 Iowa, 576; Kirsher v. Kirsher, 120 Iowa, 337.

Several witnesses were permitted to testify to the plaintiff’s complaints of present pain and suffering, extending up to the time of the trial. There was no error in this ruling. Complaints of present pain and suffering are competent. Their weight is for the jury, Keyes v. Cedar Falls, 107 Iowa, 509; Rupp v. Howard, 114 Iowa, 65.

We find no error, and the judgment is aeeieMed.

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Sherwin, J.

The jury gave the plaintiff $675, and the appellant contends that the amount is excessive. We do not think so. The plaintiff was certainly seriously injured -ahd confined to her bed for two weeks thereafter, a part of which time she was under the care of a physician. Before receiving the injury, she was a strong, healthy [93]*93woman, entirely free from the acbes and pains which afterwards afflicted her and which continued from the time of the injury up to the trial, a period of a year. Her disability was also suchthatshe was unable to perform many of the usual household duties which she had theretofore attended to.

An instruction was given authorizing a recovery for future pain and suffering, and this is complained of. The evidence tended, at least, to show that the plaintiff had suffered severe pain right up to the time of the trial; and that she had not then fully recovered from the injury. Under such circumstances, the instruction was clearly correct, and there was evidence supporting it. The fact that the pain may have been caused by a physical condition which was not specifically pleaded would not change this result, because such physical, condition was shown without objection to have been the possible result of the fall on the, defendant’s walk. It is a familar rule that, if a case is mutually tried on a theory unsupported by the pleadings, objection cannot thereafter be heard.

The hypothetical question to Dr. Bos was a fair summary of the facts which the plaintiff’s evidence tended to prove, and it was not necessary to embody more therein; hence there was no error in overruling the defendant’s, objection thereto. Bever v. Spangler, 93 Iowa, 576; Kirsher v. Kirsher, 120 Iowa, 337.

Several witnesses were permitted to testify to the plaintiff’s complaints of present pain and suffering, extending up to the time of the trial. There was no error in this ruling. Complaints of present pain and suffering are competent. Their weight is for the jury, Keyes v. Cedar Falls, 107 Iowa, 509; Rupp v. Howard, 114 Iowa, 65.

We find no error, and the judgment is aeeieMed.

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97 N.W. 989, 122 Iowa 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buce-v-incorporated-town-of-eldon-iowa-1904.

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