Fuchs v. St. Louis Transit Co.

86 S.W. 458, 111 Mo. App. 574, 1905 Mo. App. LEXIS 525

Opinion

BLAND, P. J.

(after stating the facts). — 1. On the trial defendant objected to all evidence tending to show that the injury to plaintiff’s nervous system was permanent, for the reason it was not specifically alleged in the petition. The allegation in the petition, in respect to the permanency of the injuries is, “thereby severely bruising and injuring plaintiff on her body and limbs, and also causing severe and permanent internal injuries to the plaintiff, and also causing injuries to' plaintiff’s nervous system.”

In Cook v. Railway, 19 Mo. l. c. 333, in reference to the allegations essential to entitle an injured person to prove the permanency of the injuries, the court said: “The law is too well settled to admit of discussion that in the action for injuries to the person, by the person injured, it is not essential that the petition should specially aver that the injury is permanent in order to recover, therefor. ‘The gist of the action is the injury to the person, and the prospective damages are considered to be immediate and natural consequences of the injury.’ Thomas on Neg., 1250, sec. 33; Bradbury v. Benton, 69 Mo. 194; Tyson v. Booth, 100 Mass. 256; Filer v. Railroad, 49 N. Y. 42; Russell v. Columbia, 74 Mo. 480.”

This ruling was approved in Lewis v. City of Independence, 54 Mo. App. l. c. 186, and in Golden v. City of Clinton, Ib. l. c. 118. The gist of the action is the injury to the plaintiff, and in estimating her compensatory damages she is entitled to compensation for all the consequences of the injury, both past and prospective (Sherwood v. Railway, 82 Mich. l. c. 383) ; and it was not error to admit evidence of the permanency of plaintiff’s nervous condition as a result of the injury. For the same reason it was not error to instruct the jury, as was done and of which defendant complains, that in estimating the damages the jury might take into consideration any pain of the body or anguish of mind whichit might believe from the evidence plaintiff had suffered “or which, if any, will reasonably result to her by reason of her injuries and directly caused thereby.

2. It is contended that injury to plaintiff’s left kidney was not natural and necessary result of her injury and for this reason the injury to the kidney should have been specially pleaded to entitle her to recover therefor. Internal injuries were alleged as a-result of the injury, and if it be conceded (which we do not) that the injury to the left kidney was not a natural and necessary result of the fall into the street, the allegation of the petition was sufficient to let in the evidence. Mason v. Railway, 75 Mo. App. 1; Gerdes v. Iron and Foundry Co., 124 Mo. l. c. 360, 25 S. W. 557. If defendant desired a particular specification of the internal injuries, it should have moved to malee the petition more definite and certain in respect to such injuries. By going to trial on the petition as framed, defendant waived any objection to the admission of proof of any internal injuries plaintiff might offer as natural result of the injury-

The damages assesed are not excessive and no error apearing in the record, the judgment is affirmed.

All concur.