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Alexander v. Cheaster

Decided: January 31, 1933.

MAX ALEXANDER, PLAINTIFF-RESPONDENT,
v.
JAMES R. CHEASTER, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, Arthur T. Vanderbilt.

For the respondent, Simon L. Fisch.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. The plaintiff below obtained a judgment, entered upon a verdict at the Essex Circuit, for damages sustained by him as a result of being struck by the defendant's automobile on September 24th, 1930, and the defendant appeals.

The plaintiff's complaint, after alleging, among other things, that, as a result of the collision, the plaintiff suffered grave and severe bodily injuries, among others, dislocation and fracture of the shoulder, continued thus: "6. As a further result of the injuries caused as aforesaid, the plaintiff, Max Alexander, was confined to his bed for a great length of time, was prevented from attending to his normal

occupation for a great length of time and has suffered great damage by reason thereof."

At the trial, plaintiff proved without objection that at the time of the accident he had a shop where he manufactured certain articles of jewelry; that he performed certain work in connection therewith, requiring physical exertion; that as a result of the injuries sustained he could not do that work. Over intermittent objections of the defendant, the court permitted the plaintiff to further testify that he hired others to substitute in his place from time to time, to do the work which he ordinarily performed, and as to the amounts paid by him for such substituted hire. No exception was taken to the court's charge as to the effect to be given to such evidence.

The sole contention of the defendant now is that the lower court erred in permitting the plaintiff to testify as to payments made for the hire of other persons hired by him from time to time to substitute in his place and to do the work which the plaintiff ordinarily performed prior to the accident.

We do not stop to consider the doubtful question whether there were any objections or exceptions to evidence sufficient as a basis for appeal, but we proceed now to consider the question which defendant seeks to raise.

The defendant contends that the court in allowing such evidence erroneously permitted proof of special damages under a general allegation of damages, and he relies chiefly upon the case of Gumb ...


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