#### Leonora Fulford, Respondent, *v.*George W. Linch, as Receiver of the Second Avenue Railroad Company, Appellant. William Fulford, Respondent, *v.*George W. Linch, as Receiver of the Second Avenue Railroad Company, Appellant.

First Department,

June 4, 1915.

Negligence — evidence — physical injuries not alleged — shortening of leg as result of accident —husband and wife — damages recoverable by husband for injury to wife — sexual intercourse.

Where the complaint in an action to recover damages for negligence in effect alleged merely that the plaintiff sustained serious injury to her left leg, so that she became lame and has been unable to walk without assistance, and the bill of particulars merely alleged injuries to the thigh and muscles, to the knee cap and to the leg, ankle and foot and muscles of the left leg, causing great pain and disfigurement, so that the plaintiff has become lame and walks with great pain, it is error to admit the testimony of a physician, who examined the plaintiff sixteen months after the accident, to the effect that he found her left leg has become shortened.

*71A husband is not entitled to recover general damages for injury to the person of his wife, as such damages are recoverable by her only; he can only recover such special damages for loss of service and society as he sets forth in his complaint. Hence, where the complaint is silent on that subject, he cannot recover damages on the ground that the injury to his wife made sexual intercourse between them impossible for a certain period.

Ingraham, P. J., and Dowling, J., dissented.

Appeal in both cases by the defendant, George W. Linch, as receiver, from two judgments of the Supreme Court in favor of the plaintiff in each case, entered in the office of the clerk of the county of New York on the 14th day of March, 1914, upon the verdict of a jury for $1,500 in the first case and $500 in the second case: Also an appeal by the defendant from two orders entered in said clerk’s office on the 25th day of March, 1914, denying the defendant’s motion for a new trial in each case.

*Charles H. Tuttle [Harold R. Medina*with him on the brief], for the appellant.

*Leon Forst,*for the respondent.

Hotchkiss, J.:

These were several actions by husband and wife to recover damages arising from injuries received by the wife while alighting from a street car on which she had been a passenger. The two cases were tried together, the testimony of the various witnesses being taken and received as common to both. There was a sharp conflict at the trial on the question of defendant’s negligence and also as to the seriousness of the wife’s alleged injuries, and a substantial verdict for the plaintiff was rendered in each case. On the question of defendant’s negligence we are not disposed to interfere with the verdict; but in view of the state of the evidence on the question of damages it is proper that we should critically examine any alleged errors in the admission of evidence which might have affected the amount awarded.

Dr. Goodman, a medical expert, who examined the wife, was sworn in plaintiff’s behalf and was permitted to testify *72over objection and exception that on examining the wife’s left leg some sixteen months after the accident he found it shortened, and that in the present state of medical science for the treatment of such conditions he was unable to say how long the difficulty might continue. Neither in the wife’s complaint nor in her bill of particulars was there any reference to a shortening of the leg. The complaint alleges that she “sustained serious and painful injury to her left leg, and was made sick, sore, lame and disabled and received contusions and bruises on her limbs and body,” which she believed would be permanent, and that ever since the accident she had “been unable to walk, except with assistance,” and had been advised that she “will never be able to again walk with the same freedom.” In her bill of particulars she undertook to specify in detail the exact injuries she had received, and these, so far as her left leg is concerned, are stated to have been “injuries to the left thigh and muscles thereof; to the left knee cap and muscles thereof; to the left leg and muscles thereof; to the left ankle and left foot and the knee cap and ankle of the left leg were dislocated, causing plaintiff great pain and continuing to cause plaintiff great pain; both ankle and knee of left leg are disfigured; as a result of said injuries the said knee and said ankle have become enlarged, * * * plaintiff has become lame as a result of said injuries and * * * walks with great difficulty.” In the foregoing detañed statement there is no reference whatever to a shortening of the leg, and although in the complaint it was stated that plaintiff had become “unable to walk, except with assistance,” and in the bill , of particulars that she had “ become lame as a result of said injuries,” there was nothing to indicate that the lameness arose from a shortening of the leg. *In Keefe*v. *Lee*(197 N. Y. 68) the question was examined at length as to what evidence of injuries could properly be received under general or particular allegations. In that case plaintiff had been injured by a vicious horse, and the complaint aUeged “ that the plaintiff is seriously and permanently injured through his head, skull, eyes, and bruises to his right leg and body; ” also that “ said horse did viciously attack the plaintiff, jumping upon him, kicking him in his legs and feet, striking the plaintiff *73upon the head, breaking his skull, tearing the skin and scalp therefrom, wounding, injuring and bruising his right leg and his body and nearly killing this plaintiff.” It was held error to admit evidence tending to show that the plaintiff suffered deafness as the result of his injuries. In the course of its opinion the court examined *Ehrgott*v. *Mayor, etc.*(96 N. Y. 264) and *Kleiner*v. *Third Ave. R. R. Co.*(162 id. 193). “In the *Kleiner*case the complaint alleged that the plaintiff received severe and painful contusions to her head, body,- and arms, and lacerated her scalp whereby she sustained severe nervous shock and concussion of the brain and injured her eyesight and she was for a time rendered unconscious and thereby sustained permanent injuries.” These allegations were held insufficient to justify proof that the result of the injuries “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.”*Speaking of the *Kleiner*case the court said (p. 72) that the effect of the decision was “to materially restrict the asserted right to prove special damages under a complaint containing general words alleging permanent injuries and nervous shock, and it confines the *Ehrgott*case as a precedent to the language used in the complaint in that case. * * * The complaint in this case does not directly or indirectly allege that plaintiff’s deafness is the result of his injuries. Deafness is not a necessary, natural or ordinary result of the injuries alleged in the complaint.” Continuing and after again referring to the *Ehrgott*case in which there were “general words ” indicating bodily injury, the court proceeded to express its opinion of a situation where there were “ general words ” followed by a particular description of the alleged injuries; continuing the court said (p. 74): “Where a plaintiff attempts by his complaint to specify particular damages which he claims to have suffered, he thereby, at least to some extent, negatives any claim for damages other than those which he has specified. In saying that he was seriously and permanently injured through his head, skull, eyes, and bruises to his right leg and body ’ he did not thereby include injury to the organs of hearing, but rather confined his specification to general injuries to *74his head and skull and eyes. As the skull and eyes are parts of the head it will be presumed that so far as the plaintiff intended to particularize in regard to the injuries to the head, he intended to confine his statement of injuries to the parts named and that his claim of deafness asising from his injuries was an afterthought.”

In the case at bar, as I have said, the complaint alleged that the wife had “sustained serious and painful injury to her left leg, and was made sick, sore, lame,” etc. But when called upon to specify the particulars of her injuries we find that although plaintiff went into very considerable minutiae in specifying the exact injury she had received, she totally failed to state that her left leg had been shortened, although she did state that as a result of the injuries thus particularly specified she “has become lame.” It cannot be said that a shortening of the leg was such an injury as necessarily, usually or immediately arose from the injuries particularly specified, nor that plaintiff’s lameness was necessarily to be attributed to a shortening of her leg rather than to the particular injuries she had chosen to specify. It follows, therefore, that it was error for the court to admit the evidence in question.

So far as the record concerns the action of the husband I think further error is disclosed in the admission of evidence. The husband’s complaint contained a general allegation that in consequence of the alleged injuries to his wife he had been deprived of her services “ and his comfort, happiness and companionship in her society have been impaired.” There was no allegation of damage other than in the above general words. The husband was not entitled to recover general damages for the injury to his wife, for those damages belonged to and were recoverable by her alone; the husband could recover special damages only, and it was necessary that all such special damages should be alleged. *(Uertz*v. *Singer Mfg. Co.,*35 Hun, 116.) Over the defendant’s objection and exception the husband was permitted to testify that for a period of upwards of five months after the accident his wife’s condition was such that intercourse between them was impossible. Assuming that damages were recoverable by the husband because of any such state of facts, they were special damages and as such should *75have been alleged. *(City of Dallas*v. *Jones,*54 S. W. Rep. 606.)

For the reasons above stated, both judgments should be reversed and a new trial granted, with costs to appellant to abide the event.

McLaughlin and Laughlin, JJ., concurred; Ingraham, P. J., and Dowling, J., dissented.

Judgments and orders reversed and new trials ordered, with costs to appellant to abide event.