#### JAMES M. MUSE v. FORD MOTOR COMPANY.

(Filed 1 May, 1918.)

1. Negligence — Evidence: Corroborative; Contradictory — Subsequent Repair.

Where damages are sought in an action by an employee against his employer for the latter’s negligence in leaving a hole in a concrete floor with spikes in it, where plaintiff was required to work, and which caused the injury complained of, and there is conflicting evidence as to whether such condition existed at the time, it is competent in contradiction of the defendant’s evidence and in corroboration of the plaintiff to show that the defect had since been remedied, though incompetent as substantive evidence of the negligence alleged.

2. Evidence: Corroborative; Contradictory — Instructions — Requests — Restrictions — Appeal and Error.

Where evidence is admissible only for corroboration or contradiction, the failure of the trial judge to thus restrict it is not reversible error in the absence of a special request to do so.

3. Appeal and Error — Instructions—Presumptions.

Where the record does not set out the judge’s charge, and there are no exceptions thereto, it will be presumed on appeal that it was a correct one.

4. Appeal and Error — Opinions—Harmless Error.

The plaintiff’s testimony, in his action to recover damages for a personal injury alleged to have been negligently inflicted, as to the result of the injury in producing hernia is harmless when he has testified that immediately thereafter he felt a severe pain and the other evidence tends to show it was so caused, and that hernia immediately followed.

5. Evidence — Illustrations—Spikes.

Where there is evidence tending to show defendant’s actionable negligence in permitting a hole in a concrete floor with spikes in it t.o remain where the defendant, his employee, was required to work, it is competent for the witness to explain his testimony to the jury by using another spike like in size and form.

6. Pleadings — Interpretation—Liberal Construction.

Pleadings are liberally construed, and where it is apparent from the whole pleading that the complaint alleges a good cause of action, it will be sustained. Revisal, sec. 495. BlaoJcmore v. Wmders, 144 N. C., 215, cited and applied.

7. Pleadings — Indefiniteness—Motions—Demurrer.

Objection that a complaint is too indefinite in its allegations as to a cause of action should be taken by motion that it be made more certain, and not by demurrer.

8. Pleadings — Negligence—Effect—Statutes.

It is not necessary for the plaintiff to enumerate all of the particulars of the general damages alleged to have been caused by the negligent act of the defendant, in order to recover for them. Oonrad v. Shuford, 174 N. C., 719, cited and applied.

*4679. Pleadings— Evidence— Scope — Amendments— Appeal and Error — Objections and Exceptions — Statutes.

Where the allegations of the complaint are sufficiently broad under a liberal construction to include within their scope the evidence objected to, it will not be considered as a variance, and where there is a variance, the objecting party must proceed under the statute, and if the trial judge may order an amendment, and if the proper course is not pursued, the variance will be deemed immaterial on appeal. Revisal, secs. 515-516.

10. Appeal and Error — Instructions—Contentions—Objections and Exceptions.

The judge should be given an opportunity to correct his statement of the contention of the parties by objection taken at the time, or error in that respect will not be considered on appeal.

11. Damages — Mental Anguish — Negligence—Personal Injury.

Where there is evidence, either direct or circumstantial, tending to show that mental anguish was suffered in connection with a physical injury negligently inflicted, it may be considered by the jury as an element of actual or compensatory damages in passing upon that issue. Wallace v. R. R., 104 N. C., 442, 452, cited and applied.

ActioN, tried before Webb, J., and a jury, at October Term, 1917, <of MECKLENBURG.

Action for damages. Plaintiff alleges that he was injured by defendant’s negligence under the following circumstances. It was the duty of the plaintiff, as an employee of the defendant, to paint automobile bodies for Ford cars. The painting is done in this way: The paint is placed in an overhead tank with a hose attached; underneath this ■overhead tank is what is called the drip pan, which is in the shape of a square with an open end. The automobile bodies are placed on trucks, the bodies being longer and broader than the trucks and so project from the sides and ends of the trucks. The truck with the automobile body on it is then run into the open end of the drip pan and the paint is sprayed ■on the body by use of the hose attachment to the overhead paint tank. The plaintiff averaged putting one coat of paint on about 100 bodies per day. It was the duty of the plaintiff to pull the truck with the body on it away from the drip pan as soon as he had sprayed it with a coat of paint, to make room for spraying another body. There was a hole worn in the cement floor just in front of the drip pan, over which it was necessary to pass the trucks in carrying the automobile bodies in und out from the drip pan. Standing in the hole were two iron spikes from one to two inches high. These spikes, at the time in question, were, as plaintiff alleges, serving no useful purpose, but had been negligently left standing in the roadway of the trucks. The automobile bodies which the plaintiff was required to paint weighed about 480 pounds. On or about 27 July, 1917, the plaintiff took out several trucks with *468bodies thereon from the drip pan after spraying the same, the trucks starting without trouble from off the sheet-iron upon which they were standing, but when they reached the defective place in the floor above described, and on account of the wheels of the trucks striking the hole in the floor and the iron spikes, the plaintiff received a jerk or strain which ruptured him and caused him to have a painful hernia.

Defendant denies, all allegations of negligence, including this allegation (No. 7) of the complaint: “That there was a hole in the cement floor just in front of the drip pan over which it was necessary to pass the trucks in carrying the automobile bodies in and out from the drip pan; that this hole was about 12 or 16 inches square or larger and from an inch to two inches deep.” Evidence was admitted over defendant’s objection that repairs had been made after the accident to the cement floor of the garage where plaintiff alleges there was a hole and a spike. There were other exceptions, which are noted in the opinion of the Court by Walker, J.

The jury returned a verdict finding that there was negligence which proximately caused the injury, but that there was no contributory negligence, and assessed the damages. Defendant appealed from the judgment thereon. ’

Stewart & McRae for 'plaintiff.

Chase Brenizer for defendant.

"Walkek, J.,

after stating the case: We have not set out the evidence, charge, and objections of the defendant extensively, but have stated so-much of them as will be necessary for a consideration of the assignments, of error.

1. The evidence as to repairs was competent in one view of the case. It comes within the exception to the general rule, that such evidence is not admissible to show negligence. It seems to us that Tise v. Thomasville, 151 N. C., 281, is directly in point, as the plaintiff in that case was. permitted to show that a hole was filled up, as proof of the condition existing at the time of the injury and to contradict or corroborate witnesses.

We said in Pearson v. Clay Co., 162 N. C., 224, 225: “To show that a hole into which he had fallen, as he had testified, had been filled up-after the occurrence was competent, not to prove negligence, but to contradict defendant’s assertion that the hole was not there at the time of the alleged fall, it having been filled up.”

In R. R. v. Hawthorn, 144 U. S., 202, it was said, in discussing the rule: “Upon this question there has been some difference of opinion in the courts of the several States. But it is now settled upon much con*469sideration, by tbe decisions of tbe bigbest courts of most of tbe States in wbicb tbe question bas arisen, tbat tbe evidence is incompetent, because tbe taking of sueb precautions against tbe future is not to be construed as an admission of responsibility for tbe past, bas no legitimate tendency to prove tbat tbe defendant bas been negligent before tbe accident happened, and is calculated to distract tbe minds of tbe jury from tbe real issue and to create a prejudice against tbe defendant,” citing many cases and among others Morse v. R. R., 30 Min., 465; Corcoran v. Peekskill, 108 N. Y., 151; R. R. v. Clem, 123 Ind., 15. Part of tbe above quotation was taken from tbe opinion of Judge Mitchell, delivered by him in Morse v. R. R., supra. This Court adopted tbe same rule in Lowe v. Elliott, 109 N. C., 581, and approved wbat is above quoted from tbe opinion of Mitchell, J., in Morse v. R. R., citing three other cases, Dougan v. Transportation Co., 56 N. Y., 1; Sewell v. Cohoes, 11 Hun, 626, and Baird v. Daily, 68 N. Y., 547. The case of Lowe v. Elliott was approved in Myers v. Lumber Co., 129 N. C., 252; Aiken v. Mfg. Co., 146 N. C., 324; Tise v. Thomasville, supra; Boggs v. Miming Co., 162 N. C., 393. See Lockhart on Evidence, sec. 168.

But there are exceptions to this rule, some of wbicb, with tbe reason for tbe rule, are stated in 29 Cyc., 616, 617, 618, and in tbe authorities wbicb we have already cited. In this ease tbe defendant denied tbat tbe bole and spike were of tbe character described by tbe defendant, and this evidence tended to corroborate tbe plaintiff and bis witnesses. This kind of testimony should be carefully explained to tbe jury by tbe court, and they should be instructed not to consider it as evidence of negligence, but should confine it strictly to tbe purpose for wbicb it is admitted. But if tbe judge fails to do so, it is not reversible error, unless be was asked for a special instruction thus restricting it. Rule 27 (164 N. C., 438); Tise v. Thomasville, supra, where it isf said, at p. 282: “It was competent to show tbat tbe repairs were made afterwards — -not tbat tbe repairs were evidence tending to prove negligence, but simply to prove their date to contradict tbe defendant’s witnesses.” Westfeldt v. Adams, 135 N. C., 591.

Tbe evidence was also competent in corroboration of tbe plaintiff’s evidence of tbe existence of tbe bole at tbat time and place. Tbe defendant contends tbat, in this view, tbe court should have instructed tbe jury tbat this evidence was admitted only in corroboration. But Rule 27 (140 N. C., 662) provides tbat this is not error “unless tbe appellant asks, at tbe time of admission, tbat it be restricted.” Hill v. Bean, 150 N. C., 437. Indeed, it does not appear tbat tbe judge did not give a proper instruction. Tbe presumption is tbat be did, as there is no exception tbat be did not. S. v. Powell, 106 N. C., 638; S. v. Brabham, 108 N. C., 796; Byrd v. Hudson, 11 N. C., 211.

*4702. The testimony of the plaintiff as to the canse of his injury was harmless. He stated that he felt the severe pain immediately after he had received the injury. He had no hernia before and there was scarcely any evidence to show that the hernia was not caused by the jerking of his body by the truck; but, on the contrary, it all tended strongly and almost conclusively to show that it was so caused.

3. The exhibition of a spike, not the one which was in the hole, was likewise harmless. It was offered, not to identify it as the one which caused or helped to cause the injury, but as being like it in size and form, for the purpose of giving the jury some light upon the question as to whether the spike was at all instrumental in injuring the plaintiff; (like a map or diagram is used in some cases), and as evidence it was merely explanatory.

4. ~We have read the complaint carefully, and are of the opinion that there is sufficient allegation therein as to the clogging of the^ truck’s wheels. "We must give it a liberal construction. Blackmore v. Winders, 144 N. C., 215; Brewer v. Wynne, 154 N. C., 467; Talley v. Granite Co., 174 N. C., 445; Simmons v. Roper L. Co., 174 N. C., 220. In the first of these cases we said:

> “The uniform rule prevailing under our present system is that for the purpose of ascertaining the meaning and determining the effect of a pleading, its allegations shall be liberally construed, with a view to substantial justice between the parties. Revisal, sec. 495. This does not mean that a pleading shall be construed to say what it does not, but that if it can be seen’ from its general scope that a party has a cause of action or defense, though imperfectly alleged, the fact that it has not been stated with technical accuracy or precision will not be so taken against him as to deprive him of it. Buie v. Brown, 104 N. C., 335. As a corollary of this rule, therefore, it may be said that a complaint cannot be overthrown by a demurrer unless it be wholly insufficient. If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective, or redundant may be its statements; for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of' the pleader. It must be fatally defective before it can be rejected as insufficient.”

This is as to the sufficiency of the pleading. If a more definite allegation be deemed necessary by the opposite party, he should ask, by motion, that it be made more certain. Mullinax v. Hord, 174 N. C., 607. Speaking to an objection that there was a variance between an allegation of general and special damages and the proof, we said recently in *471 Conrad v. Shuford, 174 N. C., 719, that “The mere fact that she did not enumerate all of the particulars of her general damages did not deprive her of the right to prove them. All the injuries which the plaintiff suffered as a result of the collision are quite plainly charged to have been caused directly and immediately by the negligent and reckless act of the defendants in running by her vehicle and scaring her team. The description of the injuries was not as exact as it might have been made, but sufficiently definite. The pleader is not required by the rule to go into an account of minute details and to specify every muscle that ached and every nerve that throbbed, every contusion or fracture, and every racking pain. If a more definite statement of the injuries was desired, the defendant could have asked for a bill of particulars,” citing several cases.

As to the objection that there is a variance between allegation and proof, we can well repeat here what was said in Simmons v. Roper L. Co., 174 N. C., at p. 228: “The defendant’s next position is that there was a variance between the allegations and the proof; but we think- the complaint is sufficiently broad in its allegations when considered under the liberal construction to which it is entitled by our Code, to include a cause of action such as corresponds with the evidence, especially section 5, which is more general in its allegations. Besides, if there was any lack of correspondence between the allegations and the proof, Re-visal, secs. 515-516, provides how a party may take advantage of it; and when the procedure there presented is not followed, the variance is deemed immaterial under section 515.” We conclude, therefore, that there was no substantial variance, and certainly none which in the state of the record is available to the defendant.

5. If the court improperly stated the contentions of defendant, the matter should have been called to the judge’s attention in due time, so' that he could have an opportunity to correct his statement of them. Otherwise they are not ground for exception. S. v. Johnson, 172 N. C., 920; Jeffress v. R. R., 158 N. C., 215; S. v. Blackwell, 162 N. C., 672.

6. In actions for personal injuries, one of the elements for the assessment of actual or compensatory damages is mental anguish. The rule of damages in such cases is stated in Wallace v. R. R., 104 N. C., 442, 452 (where the plaintiff was injured by defendant’s negligence), as follows: “In this class of eases (injury by negligence), the plaintiff is entitled to recover as damages one compensation for all injuries, past and prospective, in consequence of the defendant’s wrongful or negligent acts. These are understood to embrace indemnity for actual nursing and medical expenses and loss of time, or loss from inability to perform ordinary labor or capacity to earn money." Plaintiff is to have a reasonable satisfaction (if he is entitled to recover) for loss of body *472and mind, which are the immediate and necessary consequences of the injury.” The rule as thus formulated was taken from 3 Southerland on Damages (1st Ed.), p. 261, and is sustained by many cases here and elsewhere. Osborn v. Leach, 135 N. C., 633, and cases which are collected in the Annotated Edition of 104 N. C., at p. 452. Two of the more recent cases in which the rule was approved as being “full and comprehensive,” are Patterson v. Nichols, 157 N. C., 407, and Rushing v. R. R., 149 N. C., at pp. 161, 163. Of course there must be direct or circumstantial evidence from which the jury may infer that the injury was accompanied by mental anguish, and there was such in this case, as appears in the record.

We have carefully examined and considered all of the defendant’s exceptions, and have reached the conclusion that the rulings of the learned presiding judge were free from error, and that the case was correctly tried in all respects.

No error.