Zvolanek v. Bodger Seeds, Ltd.

WILLIS, J.,

pro tem.

Defendant has appealed from a judgment awarding damages for injuries to land and sweet peas situated thereon, resulting from flooding by water through the negligent acts of the defendant.

Plaintiff alleged that defendant so negligently flooded its lands in process of irrigation that water ran into and over

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the land of plaintiff and the sweet peas situated thereon, and “damaged the said land and sweet peas thereon to the amount of five thousand five hundred dollars”. At the trial it developed that the sweet peas so injured were special experimental varieties propagated and cultivated over a period of successive years to the end that new and special varieties of sweet peas might be produced in quantities sufficient to make seed for market uses, but which at the time of injury had not reached the stage where any market value had attached to seeds produced therefrom. Over defendant’s objection plaintiff was permitted to give testimony as to the amount of ground space occupied by these special varieties, as to the method of producing them as hybrids by means of a cross-pollination, as to the manner of raising them, the amount of time expended during the preceding years from first cross-pollination to date, the value of the time so expended, the rental value of the land used for producing such specialties and the value to plaintiff of the seed lost by reason of the flooding. The ground of objection to the admission of such evidence in each instance was founded on the proposition that such testimony was evidence of special damages and not admissible because special damages were not pleaded in the complaint. On this appeal this point is presented, and in addition it is contended that such proof, regardless of the character of the pleading of damages, was not admissible because it related to elements of damage too remote and speculative to sustain the judgment of $1,000 entered herein.

Damages are either general or special. Damages which necessarily result from the act complained of are denominated general damages, and may be proved under the

ad damnum

clause or general allegation of damage; while those which are the natural consequence of the act complained of, and not the necessary result of it, are termed special damages. Special damage must be specially set forth in the complaint or the plaintiff will not be permitted to give evidence of it at the trial.