Opinion
February Term, 1896.
Fred P. Hummel and Emanuel J. Myers, for the appellants.
John H. Whiting, for the respondent.
So far as the bill of particulars is concerned, we think the defendants entitled to no further relief.
The complaint states with sufficient clearness that the negligence and wrongful conduct on the part of defendants complained of, consisted of their wrongful delivering to plaintiff and directing her to wash and launder underclothing impregnated with disease, she being ignorant of its condition. As to the name, nature, character or other description of the disease, we think the complaint is not sufficiently specific, and that the order should have required it to be made more definite and certain.
The complaint describes the disease as a dangerous and contagious disease of a venereal character. This is a very general description, and may cover a variety of diseases very different in their particular characteristics and readily distinguishable from each other. No affidavit on the part of the plaintiff was read, in opposition to the motion, tending to show that there was any difficulty in determining what the particular nature of the disease was. She, apparently, is a young woman, as she appears and sues by a guardian, and she might not of her own knowledge be able to state the particular name or nature of the disease, yet she alleged in her complaint that she had expended large sums of money for medical treatment, medicine and care in endeavoring to get cured of the disease, and, so far as appears, her medical attendant has had no difficulty in determining the particular nature of the disease and has informed her on the subject. It may well be important for the defendants to know in advance of the trial what the plaintiff claims the particular name and nature of the disease is, in order that they may be able to meet the question on the trial as to the plaintiff's having contracted it in the manner she claims to have done. As there does not appear to be any difficulty in plaintiff's disclosing in her complaint the fact called for, we think the order should have required it to be done.
The order should be modified by requiring the plaintiff to make her complaint more definite and certain, by alleging therein the name, nature, character or other description of the disease claimed to have been contracted by her, and, as so amended, affirmed, with costs to abide event.
VAN BRUNT, P.J., RUMSEY and PATTERSON, JJ., concurred.
Order modified as directed in opinion, and, as so modified, affirmed, with costs to abide event.