that defendant was bound to anticipate that consequences of this character might result from the injuries described, and damage be claimed therefor, especially in view of the fact that plaintiff had specifically pointed out in her complaint the injuries received and had in detail alleged the particular consequences flowing therefrom upon which she based her claim for damages? The very purpose of written pleadings on the part of the plaintiff is to advise the defendant of the nature and extent of the claim made against him, and thereby give him an opportunity to prepare to meet it at the trial if he so desires. This doctrine is well illustrated by Mr. Pomeroy, in his work on Code Remedies, at section 554, in the following language.

"The very object and design of all pleading by the plaintiff, and of all pleading of new matter by the defendant, is that the adverse party may be informed of the real cause of action or defense relied upon by the pleader, and may thus have an opportunity of meeting and defeating it if possible at the trial. Unless the petition or complaint on the one hand, and the answer on the other, fully and fairly accomplishes this purpose, the pleading would be a useless ceremony, productive only of delay, and the parties might better be permitted to state their demands orally before the court at the time of the trial. The requirement therefore that the cause of action or the affirmative defense must be stated as it actually is, and that the proofs must establish it as stated, is involved in the very theory of pleading."

Tested by this rule, which is founded upon the fundamental principles of written pleadings in civil actions, the complaint, as framed, was no notice to the defendant that damage for injuries to plaintiff's eyes would or might be claimed. Therefore defendant was not bound to anticipate and be prepared to meet a claim of such a character. We do not wish to be understood as holding that in personal injury cases the plaintiff must in his complaint describe in detail every bruise, sprain, and wound he may have suffered because of the wrongful act complained of in order to introduce proof thereof. Nor do we mean to say that the plaintiff cannot, under the general allegations of his complaint, introduce proof of all damages that usually and ordinarily result from the wrongful act alleged, or from the nature and kind of injuries

described. What we do say is this: Where, as in this case, the particular injuries and the consequences resulting therefrom upon which the plaintiff relies for a recovery are specifi cally alleged and pointed out, he cannot prove and recover for an element of damages not alleged, and which could not be reasonably inferred as flowing from the injuries described in the complaint. Respondent, however, insists that the evidence in question was admissible under the general allegation that the plaintiff "has been incapacitated from performing her daily work as a cook and housewife." The loss of respondent's eyesight would, it must be conceded, incapacitate her from performing her daily work as a housewife. So would the amputation of her arms, which she alleges were bruised and sprained. But we do not think it would be seriously contended that if, as a result of the injuries to plaintiff's arms, amputation had become necessary to save her life, this could be proved under the allegations of the complaint as framed. And yet, as we view the complaint, proof of amputation would be more nearly within the issues than the evidence under consideration, because injury to the arms is alleged, whereas there is no mention of any disease or injury to the eyes, nor is there any allegation from which such injury can reasonably be inferred. It is therefore an element of damages which the defendant could not reasonably be expected to have anticipated and be prepared to meet from the facts alleged.

Counsel for respondent, in support of their contention that the evidence was admissible, cite and rely on the case of Croco v. O. S. L. R. Co., 18 Utah 311, 54 Pac. 985, 44 L. R. A. 285. In that case, which was an action for personal injuries, the plaintiff was permitted to testify that his memory was not so good after the accident as it was before, and that he could not see out of his right eye. On appeal, this court held that, under the allegations of the complaint, it was not error for the trial court to admit evidence of this character. By an examination of the record in that case, it will be seen that the allegations of the complaint were general in character, and not specific, as in this case. The complaint in that

case, after reciting the facts constituting the alleged negligence of the defendant, contained the following general allegation: "The said plaintiff became greatly and permanently injured, cut, and disfigured in and upon his head, back, arms, and legs, and received injuries in other parts of his body, and was internally injured in the region of his back and abdomen, and thereby plaintiff became sick,

sore, and disordered and crippled for life, from which injuries the said plaintiff suffered great mental distress and physical pain," etc. According to the great weight of authority, the plaintiff, under these allegations, was entitled to prove all damages suffered by him that ordinarily and usually flow from injuries of the character therein described, and it was proper for the trial court to admit evidence of the impairment of plaintiff's memory and injury to his eyes which were the natural and direct result of the wrongful acts alleged and of the injuries described. But the complaint under consideration does not contain averments of such general character. What counsel contend are such general averments are allegations which relate to and specifically point out the consequences of the injuries described. We recognize and approve the well-settled rule that, where a complaint in a personal injury case contains general as well as specific allegations of the injuries received and of the damages resulting from such injuries, the plaintiff is not limited in his proof to the injuries specifically alleged, but may prove any and all damages which usually and ordinarily flow from injuries of the kind and character described in the general averments of the complaint. In the case under consideration, however, as we have hereinbefore pointed out, the injuries received, as well as the consequences resulting therefrom for which damages are claimed, are specifically alleged and enumerated, and there being no general averments of the character indicated, in fairness to the defendant, the plaintiff should have been limited in her proof to the injuries alleged in her complaint. This was not done. Permitting the plaintiff to introduce the evidence objected to naturally tended to take the defendant by surprise and to prove an element of damages of which it

had no notice. (2 Sutherland on Damages [3d Ed.], 421; Thompson v. St. L. & S. Ry. Co., 111 Mo. App. 465, 86 S. W. 465; Arnold v. City of Maryville, 110 Mo. App. 254, 85 S. W. 107; Internat'l & G. N. R. Co. v. Thomson [Tex. Civ. App.], 37 S. W. 24; G. C. & F. Ry. Co. v. Warlick, 1 Ind. T. 10, 35 S. W. 235; Piltz v. Yonkers R. Co., 83 App. Div. 29, 82 N. Y. Supp. 220; Sealey v. Met. St. Ry. Co., 78 App. Div. 530, 79 N. Y. Supp. 677; Dittman v. Edison Elec. Illum. Co., 87 App. Div. 68, 83 N. Y. Supp. 1078; Goeghegan v. Third Ave. R. Co., 51 App. Div. 369, 64 N. Y. Supp. 630; Kleiner v. Third Ave. R. Co., 162 N. Y. 201, 56 N. E. 497.)

It follows from what we have said that the court erred in admitting the testimony in question, and, as it could not have been other than prejudicial to the interests of appellant, the case must be reversed. It is so ordered. The trial court is directed to permit the parties to amend their pleadings should they so desire. Costs of this appeal to be taxed against respondent.

STRAUP and FRICK, JJ., concur.

In re FULLMER et al.

No. 1830. Decided November 23, 1907 (92 Pac. 768).

1. MUNICIPAL CORPORATIONS-DIVISION OF TERRITORY. In proceedings under Revised Statute 1898, section 288 et seq., to detach territory from a town, evidence that such territory consisted entirely of agricultural land which received no appreciable benefit from being within the corporate limits held to justify a finding that justice and equity required its serverance, within the provision therefor of Revised Statutes 1898, section 289.

2. CONSTITUTIONAL LAW-DELEGATION OF LEGISLATIVE POWER TO COURTS-SEVERANCE OF TERRITORY FROM TOWN. Revised Statutes 1898, section 288, authorizes the district court to proceed to disconnect any territory within and on the borders of any city, on petition of a majority of the owners of real property therein, stating reasons therefor, and accompanied by a map or plat of the territory. On filing of the petition, a summons to the city

is required, and issue is then joined as in other cases. Section 289 provides that if the court finds the petition is true, and that justice and equity require the disconnection, it is to appoint commissioners to adjust the terms as to the liabilities of the city, which accrued during the connection, and as to the mutual property rights of the city and territory. Other sections provide for a hearing and report of the commissioners, after which the court is to decree in accordance therewith and with the petition, unless for good cause it modifies or rejects the report. Held, that the provisions are not invalid as delegating power to the courts to legislate, since they merely require the court to judicially determine whether facts found by it entitle the petitioners to relief for causes determined by the Legislature.1

3. MUNICIPAL CORPORATIONS-DIVISION OF TERRITORY-POWER OF COURT. In such proceedings, the court is confined in the first instance to the issues of the truth of the petition and the justice of the disconnection, and cannot determine other issues without the consent of the parties.

4. SAME. The adjustment of terms upon which the territory shall be severed is for the determination of the commission, and not the court, and as these matters need not be set forth, either in the petition for severance or in the objections thereto, the question whether there are equities cannot be determined until commissioners are appointed.

5. SAME MANDATORY STATUTORY PROVISIONS. The provision that if the court finds the petition to be true, and that justice and equity require a severance, it shall appoint commissioners who shall adjust the terms upon which severance shall be made, is mandatory, and can only be avoided by an express waiver of the parties.

APPEAL from District Court, Utah County; J. E. Booth, Judge.

Application of Don C. Fullmer and others, real property owners of the town of Mapleton, to restrict its corporate limits. From a decree of severance, the town appeals.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITHI

DIRECTIONS.

A. Saxey for appellant.

W. E. Rydalch, A. L. Booth, and E. E. Corfman for respondents.

1 Young v. Salt Lake City, 24 Utah 321, 67 Pac. 1066.