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Ziervogel v. Royal Packing Co. Cases of Interest
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Ziervogel v. Royal Packing Co.

Ziervogel v. Royal Packing Co. - 225 S.W.2d 798 (Mo.App. 1950)

PARTIES:
• Plaintiff: Ollie Ziervogel
• Defendant: Royal Packing Co.: Employer of the Truck Driver

FACTS:
• Plaintiff was driving a car and Defendant was driving a company truck through an intersection and a collision occurred; because Defendant was at fault, Plaintiff filed suit against Defendant for injuries that she alleges were a result of the accident
• Plaintiff alleged in the petition:
o 1) that she suffered injuries to her neck, back, spine, and nervous system and was otherwise injured
o 2) that her earning capacity was permanently impaired
• Plaintiff actually also suffered injury to her shoulder and high blood pressure

PROCEDURAL HISTORY:
• Plaintiff filed complaint against defendant
• Trial court jury ruled in favor of plaintiff for $2,000
• Defendant motioned for mistrial because the court allowed plaintiff to introduce evidence regarding the injury to the shoulder and increased blood pressure which were not stated in the petition
• Defendant’s motion was denied
• Defendant motioned for a new trial
• Defendant’s motion for new trial was denied
• Defendant appealed

ISSUE:
• Did the trial court err in permitting the evidence by plaintiff for injuries not mentioned specifically in the petition? (the injury to her shoulder and her nigh blood pressure)

RULES/REASONING:
• (1) (A) General Damage is an injury that the law implies and that could flow naturally from the harm whereas (B) Specific Damage is an injury that is not implied by the law and may not necessarily flow naturally from the harm
o Example: the shoulder injury could flow naturally from a car accident so it is a general damage but the high blood pressure may not flow naturally from a car accident so it is a specific damage
• (2) Mo. Rule of Civil Procedure 55.19 – “When items of special damage are claimed, they shall be specifically stated.”
• (3) State ex rel. Grisham v. Allen – specific personal injury which is not the necessary/inevitable result of an injury alleged in the petition constitutes an element of “special damage” which must be specifically pleaded before evidence thereof is admissible
• (4) Federal Rule 9(g) – maintains distinction between general damages, which can be alleged without particularity, and special damages, which require pleading of considerable detail
o The distinction exists so that the Plaintiff cannot ambush the Defendant at trial; Plaintiff must put the Defendant on notice because the specific damage does not flow naturally and therefore cannot be foreseen by the Defendant

HOLDING:
• Yes. The trial court erred in allowing such evidence. Plaintiff then makes motion for rehearing or transfer to Supreme Court but the motion is denied.

CONCUR:
• The language of the rule is not ambiguous and therefore must be enforced as stated: “Items of special damage shall be specifically stated.”
• Only when the language is ambiguous can it be interpreted for clarity.

ANALYSIS:
• AGREE WITH HOLDING:
o The holding provides for systemic concerns because there is the danger of creating a slippery slope of plaintiffs not being held to follow the black letter rules exactly how they are stated
o The Plaintiff should have motioned to amend the pleading rather than attempt to be exempt from the law
• DISAGREE WITH HOLDING:
o The purpose of the rule must always be considered and the purpose of the rule in this case is to provide the other side with notice. In this case, the specific damages of the high blood pressure may not have been specifically stated in the petition; however, the high blood pressure was mentioned in the discovery process.
o Because the blood pressure was mentioned in the discovery process, the other side was given notice, therefore not allowing the evidence may have been a bad ruling


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Page last modified on Friday 28 of March, 2008 13:05:58 GMT by lrutherf.
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