Ziervogel v. Royal Packing Co.
225 S. W. 2d 798, 1949 Mo. App. LEXIS 540 (1949)
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Rule of Law:
A specific personal injury that is not the necessary or inevitable result of a generally alleged injury constitutes a special damage, which must be specifically pleaded in the petition before evidence of it is admissible at trial.
Facts:
- On or about April 20, 1948, a Studebaker automobile operated by the plaintiff and a tractor-trailer operated by the defendant's employee collided at an intersection in St. Louis, Missouri.
- The plaintiff filed a petition alleging she sustained general injuries to her neck, back, spine, and nervous system.
- The plaintiff's petition did not mention any injury related to increased blood pressure or an injury to her shoulder.
- In addition to the pleaded injuries, the plaintiff claimed to have suffered from increased blood pressure and a shoulder injury as a result of the collision.
- Prior to trial, the defendant had actual notice of the plaintiff's increased blood pressure claim through a statement to its insurer's Claim Agent, a report from a doctor hired by the defendant, and the plaintiff's deposition.
Procedural Posture:
- Plaintiff sued defendant in the trial court to recover damages for injuries from a vehicle collision.
- At the beginning of the trial, the trial court overruled defendant's objection and denied its motion for a mistrial when plaintiff's counsel mentioned plaintiff's increased blood pressure in the opening statement.
- During the trial, the court admitted plaintiff's evidence of increased blood pressure and a shoulder injury over defendant's repeated objections.
- The jury returned a verdict in favor of the plaintiff for $2,000.00, and the trial court entered a judgment on the verdict.
- Defendant filed a motion for a new trial, which the trial court denied.
- Defendant (as appellant) appealed the judgment to the intermediate appellate court.
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Issue:
Does a plaintiff's failure to specifically plead a personal injury that is not a necessary or inevitable result of generally alleged injuries preclude the admission of evidence for that injury at trial, even if the defendant had actual notice of the injury beforehand?
Opinions:
Majority - Unspecified (Concurred by Anderson, P.J., and Hughes, J.)
Yes, evidence of unpleaded special damages must be excluded. A plaintiff's failure to specifically plead special damages, such as injuries that are not the necessary or inevitable result of generally pleaded harms, renders evidence of those damages inadmissible. Under Missouri's Civil Code, special damages must be specifically stated in the pleadings. An injury like increased blood pressure is not a necessary or inevitable result of general injuries to the neck, back, and spine; therefore, it is a special damage. The defendant's actual notice of the unpleaded injury does not cure the defective pleading, as the defendant has the right to rely on the formal notice provided in the petition and object to evidence of unpleaded claims. Furthermore, a defendant does not waive such an objection by introducing countervailing evidence after the trial court erroneously overrules the initial objection.
Analysis:
This case reinforces the critical distinction between general and special damages in pleading, clarifying that even under modern, liberalized civil procedure codes, the requirement to specifically plead special damages remains firmly intact. It establishes that a defendant's actual, out-of-court notice of a specific injury does not excuse a plaintiff's failure to provide formal legal notice within the pleadings. The decision serves as a stern warning to plaintiffs' attorneys to be meticulous in itemizing all claimed injuries or to amend pleadings promptly, as failure to do so can lead to the exclusion of crucial evidence. It also protects defendants' right to object to improperly introduced evidence without being penalized for then trying to rebut that same evidence.
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