Ziervogel v. Royal Packing Company

Missouri Court of Appeals, St. Louis Circuit · 1949 · Civil Procedure

225 S.W.2d 798 (1949)

Updated July 29, 2026

Civil ProcedurePleadingSpecial DamagesAppellate ReviewNew Trial Scopespecific pleadingRule 9(g) analogueSection 52 Civil Code

Facts

Plaintiff alleged that defendant's truck struck her car in a St. Louis intersection and that she suffered injuries to her neck, back, spine, and nervous system, was otherwise injured, and had permanently impaired earning capacity. At trial, over defendant's objections, plaintiff's counsel referred to increased blood pressure in opening statement, and plaintiff introduced evidence of increased blood pressure and a shoulder injury. Defendant had learned of the blood pressure claim before trial through plaintiff's statement, deposition, and an examination by defendant's doctor, but plaintiff never amended her petition to specifically plead those injuries. Defendant objected throughout and moved to discharge the jury, but the trial court admitted the evidence.

Issue

May a plaintiff recover or introduce evidence for increased blood pressure and a shoulder injury when the petition did not specifically plead those injuries and they were not shown to be the necessary or inevitable result of the injuries that were pleaded? Also, did defendant waive its objection by presenting responsive evidence, and should any retrial be limited to damages alone?

Rule

When items of special damage are claimed, they must be specifically stated. A specific personal injury that is not the necessary or inevitable result of the injuries alleged in the petition is an element of special damage; evidence of it is inadmissible unless specifically pleaded. A defendant's actual pretrial knowledge of the condition does not substitute for pleading, and a defendant does not waive its objection by introducing evidence to meet an issue forced on it by an adverse ruling.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a negligence suit filed in Kansas City, Maya Benton alleged that a delivery van collision caused injuries to her lower back, neck, and nervous system, and that she was otherwise injured. At trial, she offered medical testimony that the crash also caused recurring vertigo, but no witness testified that vertigo necessarily or inevitably results from the pleaded injuries.

Should the trial court admit the vertigo evidence over the defendant's objection that the petition did not specifically mention it?

Explanation. The majority held that items of special damage must be specifically stated. A specific personal injury that is not the necessary or inevitable result of the injuries alleged is special damage, so evidence of it is inadmissible unless specifically pleaded. General language such as "otherwise injured" is insufficient, and surprise is not required.