81

nominal damages at least. In any case, however, the allegations of both contract and breach must be made, and they must be consistent with each other.82

A complaint showing a good cause of action for breach of contract is not bad because of unnecessary averments contained in it.83

§ 231. Allegations of special damages. For the breach of a contract an action lies, though no actual damages be sustained.84 And damages which materially and necessarily arise. from the breach of the contract need not be stated, as they are covered by the general damages laid in the declaration; but special damages must be specially stated.85 It is sufficient, so far as the demurrer is concerned, to aver in the complaint the contract, the breach complained of, and the general damages. 86 But the omission to aver specially the damages laid in the complaint, is waived by going to trial without objection.87 In an action for special damages for injuries, such damages as are the natural although not the necessary result of the injury must be specially stated, and the facts out of which they arise must be specially averred in the complaint. A complaint showing a breach of contract by the defendant in refusing to pay an agreed compensation to the plaintiff as attorney, who was prevented by the defendant from fully performing, and alleging that a certain sum of money and interest is due under the contract, is not in

88

81 Sunnyside Land Co. v. Willamette Bridge Ry. Co., 20 Or. 544, 26 Pac. 835. And see Wisner v. Barber, 10 Or. 342; Wilson v. Clarke, 20

Minn. 367.

82 Du Brutz v. Jessup, 70 Cal. 75, 11 Pac. 498; McPhee v. Young, 13 Colo. 80, 21 Pac. 1014.

83 Berry v. Kowalsky, 95 Cal. 134, 29 Am. St. Rep. 101, 30 Pac. 202; Poirier v. Gravel, 88 Cal. 79, 25 Pac. 962; Orr Water Co. v. Reno Water Co., 19 Nev. 60, 6 Pac. 72.

84 McCarty v. Beach, 10 Cal. 461; Hancock v. Hubbell, 71 Cal. 537, 12 Pac. 618.

85 Bas v. Steele, 3 Wash. C. C. 381, Fed. Cas. No. 1088; Mitchell v. Clarke, 71 Cal. 163, 60 Am. Rep. 529, 11 Pac. 882; Tucker v. Parks, 7 Colo.

62, 298, 1 Pac. 427; 3 Pac. 486; City of Pueblo v. Griffin, 10 Colo. 366, 15 Pac. 616; Tahoe Ice Co. v. Union Ice Co., 109 Cal. 242, 41 Pac. 1020; Ennis v. Buckeye Publishing Co., 44 Minn. 105, 46 N. W. 314.

86 Barber v. Cazalis, 30 Cal. 92. 87 Neary v. Bostwick, 2 Hilt. 514.

88 Stevenson v. Smith, 28 Cal. 102, 87 Am. Dec. 107; Cole v. Swanston, 1 Cal. 51, 52 Am. Dec. 288; Squier v. Gould, 14 Wend. 159; Strang v. Whitehead, 12 Wend. 64; 1 Chit. Pl. 371; Sedg. on Dam. 67; Say on Dam. 313; Tuolumne Water Co. v. Columbia etc. Water Co., 10 Cal. 193; Mallory v. Thomas, 98, Cal. 644, 33 Pac. 757; Grandona v. Lovdal, 70 Cal. 161, 11 Pac. 623; Smith v. Railway Co., 98 Cal. 210, 33 Pac. 53.

sufficient in not containing a specific allegation of damages, the facts being stated which in law constitute his damages and their

A judgment cannot award compensation for loss of time, remuneration for wages paid, etc., unless there is an allegation in the complaint as to these matters.90

91

The want of any averment of special damages cannot be reached by demurrer. Such averment is only necessary where the right of action itself depends upon the special injury received. Matters in aggravation of damages need not be alleged; the quo animo may be proved without being pleaded,92 and therefore should not be pleaded.93 When the complaint contains no averment which would sustain a recovery for temporary or special damages. a question as to such damages should not be submitted to the jury.

§ 232. Allegations in actions for injuries resulting from negligence. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do. It is not absolute or intrinsic, but is always relative to some circumstances of time, place, or person.* The prudence and propriety of men's actions are not judged by the event, but by circumstances under which they act. If they conduct themselves with reasonable prudence and good judgment, they are not to be made responsible because the event, from causes which could not be foreseen nor reasonably anticipated, has disappointed their expectations.95 Where the safety of human life is in question a very high degree of care is required. But a casualty happening without the will

96

89 Bartlett v. Odd Fellows Savings Bank, 79 Cal. 218, 12 Am. St. Rep. 139, 21 Pac. 743.

90 Dabovich v. Emeric, 12 Cal. 171. 91 McCarty v. Beach, 10 Cal. 461; Denver etc. R. R. Co. v. Pulaski Irr. Ditch Co., 19 Colo. 367, 35 Pac. 910.

92 Rustell v. Macquister, 1 Camp. 49; Shock v. McChesney, 2 Yeates (Pa.), 473; Wallis v. Mease, 3 Binn. 546; Kean ▼. McLaughlin, 2 Serg. & R. 469.

93 Warne v. Croswell, 2 Stark. 457; Molony v. Dows, 15 How. Pr. 265. See, however, Root v. Foster, 9 How.

Pr. 37; Brewer v. Temple, 15 How.
Pr. 286.

94 Richardson v. Kier, 34 Cal. 63, 91 Am. Dec. 681. And see Barrett v. Southern Pacific Co., 91 Cal. 296, 25 Am. St. Rep. 186, 27 Pac. 666; Gunn v. Ohio Riv. R. R. Co., 36 W. Va. 165, 32 Am. St. Rep. 842, 14 S. E. 465; Tetherow v. St. Joseph etc. R. R. Co., 98 Mo. 74, 14 Am. St. Rep. 617, 11 S. W. 310.

95 The Amethyst, Davies, 20; 2 N. Y. Leg. Obs. 312.

96 Castle v. Duryea, 32 Barb. 480.

and without the negligence or other default of the party is, as to him, an inevitable casualty."

§ 233. Degrees of negligence.-Ordinary care or common prudence is such a degree of care and caution as will be in due proportion to the injury or damage to be avoided." Thus the question of negligence must depend upon the facts of the case, and it is not an abstract question of law." Hence it will not be necessary in a complaint to aver the degrees of negligence in each case, as they are matters of proof to be decided from the facts stated.100 Negligence implies gross as well as ordinary negligence; and a general averment of negligence is all that is required.101 If an employment requires skill, failure to exert it is culpable negligence, for which an action lies.102 The negligence for which a recovery is sought must be alleged in the complaint.108 And it is held in some jurisdictions that the plaintiff must state the facts constituting his cause of action. He must allege in his complaint the acts or omissions of the defendant upon which he bases his right to recovery, and show that they occurred through or by the negligence of the defendant. A general allegation of negligence is held not to charge any fact.104

§ 234. Contributory negligence.-In New York, in an action. for damages caused by negligence, it must appear that the plaintiff's acts or omissions did not contribute in any degree to the result.105 The rule that where the injury has been caused by the

97 1 T. R. 27; Hodgson v. Dexter, 1 Cranch C. C. 109, Fed. Cas. No. 6565; The Lotty, Olc. 329, Fed Cas. No. 8524.

98 Ernst v. Hudson River R. R. Co., 35 N. Y. 9, 90 Am. Dec. 761.

99 Baxter v. Second Ave. R. R. Co., 30 How. Pr. 219; Welling v. Judge, 40 Barb. 193.

100 Nolton v. Western R. R. Co., 15 N. Y. 444, 69 Am. Dec. 623.

101 Oldfield v. New York etc. R. R. Co., 14 N. Y. 310; House v. Meyer, 100 Cal. 592, 35 Pac. 308.

102 The New World v. King, 16 How. 469, 14 L. Ed. 1019. See, also, Needham v. San Francisco etc. R. R. Co., 37 Cal. 409; Schierhold v. North Beach etc. R. R. Co., 40 Cal. 447;

McCoy v. California Pacific R. R. Co., 40 Cal. 532, 6 Am. Rep. 623.

103 Rosewarn v. Washington etc. Min. Co., 84 Cal. 219, 23 Pac. 1035.

104 Woodward v. Oregon etc. Nav. Co., 18 Or. 289, 22 Pac. 1076; McPherson v. Pacific Bridge Co., 20 Or. 486, 26 Pac. 560. And see Current v. Missouri R. R. Co., 86 Mo. 62; Jones v. White, 90 Ind. 255; Cleveland Ry. Co. v. Wynant, 100 Ind. 160; Smith v. Buttner, 90 Cal. 95, 27 Pac. 29.

105 Wilds v. Hudson River R. R. Co., 24 N. Y. 430; Ernst v. Hudson River R. R. Co., 24 How. Pr. 97; Gorusch v. Cree, 8 Com. B. (N. S.) 572, 598; Delafield v. Union Ferry Co., 10 Bosw. 216; Chisholm V.

negligence of the party injured he has no redress has been commented on and qualified in California;106 where it is also held that the negligence which disables a plaintiff from recovering must be a negligence which directly or by natural consequence conduces to the injury. It must have been the proximate cause, that is, negligence at the time the injury happened.107

109

It is not necessary to allege in the complaint in an action for damages to either person or property that the plaintiff is without fault,108 as it may fairly be presumed that the plaintiff exercised usual care for his own safety." The right to recover damages for injuries to the person depends upon two concurring facts: 1. The party alleged to have done the injury must be chargeable with some degree of negligence, if a natural person; if a corporation, with some degree of negligence on the part of its servants or agents; 2. The party injured must have been entirely free from any degree of negligence which contributed proximately to the injury. Where negligence consists in the omission of a duty, the facts relied on as implying that duty must be alleged. The allegation that the injury continued to be done from time to time, from the date of the wrongful act until the commencement of the suit, claiming special damages as a matter of aggravation, need not state the time or times when the damages were sustained, as the legal effect of the allegation is that they were sustained

110

Ståte, 141 N. Y. 246, 36 N. E. 184; Francisco v. Troy etc. R. R. Co., 78 Hun, 13, 29 N. Y. Supp. 247; Weston v. City of Troy, 139 N. Y. 281, 34 N. E. 780.

106 Richmond v. Sacramento Valley R. R. Co., 18 Cal. 351.

107 Kline v. Central Pacific R. R. Co., 37 Cal. 400, 99 Am. Dec. 282; Needham v. San Francisco etc. R. R. Co., 37 Cal. 409; Flynn v. San Francisco etc. R. R. Co., 40 Cal. 14, 6 Am. Rep. 595; Maumus v. Champion, 40 Cal. 121; Hearne v. Southern Pacific R. R. Co., 50 Cal. 482.

108 Wolfe v. Supervisors of Richmond, 11 Abb. Pr. 270, 19 How. Pr. 370; Johnson v. Bellingham Bay Imp. Co., 13 Wash. 455, 43 Pac. 370; Melhado v. Poughkeepsie Transp. Co., 27 Hun, 99; Coughtry v. Willamette

111

etc. R. R. Co., 21 Or. 245; 27 Pac. 1031; Johnston v. Oregon etc. R. R. Co., 23 Or. 94, 31 Pac. 283; Durgin v. Neal, 82 Cal. 595, 23 Pac. 133, 375. But see, Brannen V. Kokomo etc. Road Co., 115 Ind. 115, 7 Am. St. Rep. 411, 17 N. E. 202; City of Guthrie v. Nix, 3 Okla. 136, 41 Pac. 343.

109 Johnson v. Hudson River R. R. Co., 20 N. Y. 65, 75 Am. Dec. 375. 110 See cases cited above.

111 Buffalo City v. Holloway, 7 N. Y. 493, 57 Am. Dec. 550; Taylor v. Atlantic Mutual Ins. Co., 2 Bosw. 106; Congreve v. Morgan, 4 Duer, 439; Seymour v. Maddox, 16 Q. B. 326, 71 Com. Law Rep. 326. And see McGinity v. Mayor etc., 5 Duer, 674; Gregory v. Oaksmith, 12 How. Pr. 134.

when the wrongful act was committed, and on divers days between that time and the commencement of the suit."

112

Damages which are not the necessary result of the injury must be specially pleaded. The future and permanent effect of injuries necessarily resulting to the plaintiff from the negligence of the defendant need not be specially alleged in order to warrant a recovery therefor, but are recoverable under the general ad damnum clause.113

112 McConnel v. Kibbe, 33 Ill. 175. 113 Treadwell v. Whittier, 80 Cal.

574, 13 Am. St. Rep. 175, 22 Pac. 266, 5 L. R. A. 498.

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