November Term, 1902.
Lewis E. Carr, for the appellant.
A.D. Wales, for the respondent.
This appellant charges error in the court below in admitting evidence of the fact of the injury to the plaintiff's sexual organs over its objection that such injury was not specified in the pleading. In the case of Kleiner v. Third Ave. R.R. Co. ( 162 N.Y. 193) the rule is thus stated: "The averment in a complaint in an action for personal injuries that plaintiff sustained a severe nervous shock is insufficient to justify her in proving that the result of that shock was to produce heart disease, vertigo, curvature of the spine and other diseases, it not appearing that such consequences necessarily and immediately resulted from the shock, as the rule is that special damages must be specially alleged, and the reception of evidence of such resultant injuries properly excepted to, is reversible error." At page 200, Justice MARTIN, writing for the court, says: "We think the rule applicable to this question is correctly stated in Gumb v. Twenty-third Street Ry. Co. ( 114 N.Y. 411), where it was said, `When a plaintiff alleges that his person has been injured and proves the allegation, the law implies damages, and he may recover such as necessarily and immediately flow from the injury * * * under a general allegation that damages were sustained; but if he seeks to recover damages for consequences which do not necessarily and immediately flow from the injury, * * * he must allege the special damages which he seeks to recover.'" Within this rule of law it seems clear that an injury to the plaintiff's sexual organs was not one of the injuries specified in the complaint as caused by the accident, nor was it one of those injuries which necessarily and immediately flow from any injury alleged. The learned trial judge admitted the evidence upon condition that it should thereafter be made to appear that such affection resulted from the injuries sustained; but this holding did not satisfy the rule of law that unless such affection be a consequence which necessarily and immediately results from the injury pleaded, it requires special allegation in the pleading to authorize proof thereof. The respondent seeks to justify this ruling within the case of Ehrgott v. Mayor ( 96 N.Y. 264, 277); but a discussion of that case in the Kleiner Case ( supra) and a reference to the complaint in this action shows that the cases are clearly distinguishable.
In further answer to this objection, respondent relies upon the power of this court either to disregard the variance or to amend his pleading nunc pro tunc. This is the second trial of this case. Upon the former trial it appears that this question was litigated without objection on the part of the defendant that the injuries sought to be proven were not pleaded. The respondent's claim, therefore, is that the appellant was not surprised upon this trial, and this court may now exercise its power to amend the pleading so as to conform to the proof. The appellant, however, denies the right of this court to amend the pleading to conform to the proof when the proof was admitted over his objection that the same was inadmissible within the pleadings. In this denial we think it is sustained by the authorities. In Gill v. Ætna Live Stock Ins. Co. (82 Hun, 363) it was held, by the General Term of the third department, that the appellate court would not amend the complaint upon appeal nor disregard the variance where, upon the trial of the action, the defect in the pleading was specifically pointed out and the trial court was not requested to make the necessary amendment. In Bossert v. Poerschke ( 51 App. Div. 381) the rule, as held by the Appellate Division in the first department, is thus stated: "Where proof of a waiver of a certificate is improperly admitted over the objection and exception of the defendant, the Appellate Division will not, in order to sustain a judgment for the plaintiff, consider the complaint amended to conform to the facts proved, as that power will be exercised only when such proof has been admitted without objection and without the attention of the party offering it being called to the defect in his pleading." (See, also Neudecker v. Kohlberg, 81 N.Y. 296; Tooker v. Arnoux, 76 id. 397; Pope v. Terre Haute Car Mfg. Co., 107 id. 66; Smith v. Wetmore, 167 id. 237.) The question whether defendant was surprised upon this second trial is not a relevant one in this court. If, after this objection had been made at the trial, the plaintiff had then asked leave to amend, the trial court would have been called upon to determine whether the defendant could fairly claim to have been surprised by the evidence within the legal meaning of that term, and could have allowed the amendment upon such terms as would prevent injustice. Until such amendment was requested, however, the defendant was not called upon to make proof of the fact that he was surprised by such evidence. We apprehend that a party has the right to prepare for the trial of the issues presented by the pleadings, and if unprepared for the trial of other issues, he can claim that he is surprised within the meaning of that term as used in the statute, whatever informal notice he may have had of the intention of his adversary to litigate such other issues. The only notice which he is generally bound to regard is the formal notice given him by his adversary's pleading. We conclude, therefore, that this testimony was erroneously admitted, and for that reason a new trial must be had.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.