Keefe v. . Lee , 197 N.Y. 68 ( 1909 )

I dissent from the decision about to be made. That the plaintiff was entitled to recover compensation for injury to his hearing, if such were the fact, is unquestioned, and that the evidence received was competent to prove the fact is also unquestioned. If there was error in admitting the evidence it was simply because the plaintiff had failed to allege in his complaint that the injury he had received had affected his hearing. As to this proposition even it seems to be the law that had the plaintiff confined himself to allegations of general injury the evidence would have been competent (Ehrgott v.Mayor, etc., of N.Y., 96 N.Y. 264), but because he, to a certain extent, specialized the results of his injury, to wit, "kicking him in his legs and feet, striking the plaintiff upon his head, breaking his skull, tearing the skin and scalp therefrom, wounding, injuring and bruising his right leg and body, and nearly killing this plaintiff," not mentioning any affection of the hearing, it is insisted that the evidence was incompetent, and reliance is placed on our decision in Kleiner v. Third Avenue RailroadCompany (162 N.Y. 193) to support the contention. I think that case can be distinguished from the one now before us so far the general principle is involved, though I shall allude to but one detail. There the defendant's counsel insisted that he was surprised by the proof that the plaintiff was suffering, as a result of the accident, from a disease in no way disclosed by the complaint and asked to have a juror withdrawn and the case go over to another term, which was refused. In the present case there is no pretense of surprise on the part of the defendants. On the contrary, their counsel, in answer to a remark by the court, "There is no question about the pleadings?" answered, "I presume he has got it in the pleadings." Thereafter, on examining the complaint, he discovered it contained no allegation of this fact, whereupon he renewed his objection, which, being overruled, he took an exception. It is very plain, therefore, there was no surprise in this case.

If, however, it were conceded that under strict rules the plaintiff should have alleged injury to his hearing, the error is not sufficient to justify a reversal of the judgment. Contrary to the generally prevailing popular belief this court, in its decisions, constantly ignores technical errors not affecting the substantial rights of the parties, often far more serious than that in this case. That this error was trivial is apparent. The verdict was small. On a reversal of this judgment the plaintiff can be allowed to amend his complaint so as to state that the injury had made him deaf, and if he proves the fact will be entitled to recover therefor. The only effect of our decision will be to protract the litigation and entail additional expense on both the parties and the public.

GRAY, HAIGHT and WERNER, JJ., concur with CHASE, J.; EDWARD T. BARTLETT and WILLARD BARTLETT, JJ., concur with CULLEN, Ch. J.

Judgment reversed, etc.