Ziervogel v. Royal Packing Co.

225 S.W. 2d 798 (1949)


Ziervogel (P) was injured in an automobile accident with an employee of Royal Packing Co. (D). P alleged that she sustained injuries to her neck, back, spine, and nervous system. She also alleged that she was injured “otherwise.” P presented evidence at trial that, as a result of the accident, her blood pressure was higher and her shoulder was injured. D objected because those injuries had not been alleged in the complaint. The court overruled the objection. D had had notice of those injuries through P’s statement to her insurer and from her depositions. The jury awarded P $2,000. D appealed the decision; the blood pressure and shoulder were not alleged in the complaint, and no evidence about them should have been permitted. P opposed the appeal; D had notice of P's claim of those injuries through discovery, that Form 10 of the Appendix of Illustrative Forms to the Federal Rules of Civil Procedure was controlling (it allowed the evidence at trial without specifically pleading it).