135 P. 771 | Or. | 1913
delivered the opinion of the court.
It is contended by counsel for defendant that it was error for the court to permit testimony of plaintiff’s worry on account of her financial condition after the accident. They invoke the rule enunciated in Maynard v. Oregon R. R. Co., 46 Or. 15 (78 Pac. 983, 68 L. R. A. 477). The rule is there stated that “one suffering from injuries to his person, due to the negligence of another may recover for mental distress and anguish resulting from the same cause. (Citing many cases.) Such mental distress or anguish, however, as is not the natural result of the accident, but is produced by the operation of the mind in the contemplation of the physical condition to which the injured party is reduced, or in contemplation of an extraneous suffering or inconvenience that such condition might entail, whether it respects the person himself,- or others dependent upon him, is not regarded as matter proper to form the basis of consequential damages.”
We quote from the case of Indianapolis & St. Louis R. R. Co. v. Stables, 62 Ill. 313, 320: “It is the mind that either feels or takes cognizance of physical pain, and hence there is mental anguish or suffering inseparable from bodily injury, unless the mind is overpowered and consciousness is destroyed. The mental
In the case at bar the learned judge in his charge to the jury plainly instructed them that all rulings of the court upon questions of law arising as to the, admissibility of testimony and instructions of the court as to questions of law should govern them in arriving at the verdict. The evidence referred to and the ruling thereon lead to the conclusion that if the plaintiff, during the time she was suffering from the injury complained of, did not have funds with which to pay her expenses and was caused to worry on account thereof, the jury, in the consideration of this fact, should award her a greater compensation than they would if she had had funds, say three or four hundred dollars with which to meet those necessary demands. However distressing plaintiff’s situation might have been, and whatever amount of sympathy such a condition might
It appears from plaintiff’s evidence (Transcript, p. 31 et seq.), that in the former accident she suffered an injury to her stomach and back — in a different place from the present injury — and to her head. Plaintiff stated that she had entirely recovered from her former injury and was practically a well woman for about a year before the accident complained of; and that the injuries of which she now complains are different from those received in the former accident. This statement, however, is qualified by her evidence to a certain extent. Upon cross-examination, the following questions and answers appear:
“Q. Do you claim any injury at this time to the uterus ¶
“ A. Well, the strain kind of hurt me, the way I fell down there; it kind of strained me.
“Q. Do you claim there is any displacement of the uterus ?
“A. There was.
“Q. Did you claim anything in those particular regions at the time of the former injury?
“A. No, sir.
*33 “Q. I see — your head was injured in the former injury, was it not?
“A. Yes, sir, in the former injury it was my head that was struck.
“Q. Do you claim any injury to your head in the present accident — do you claim any injury- to your •head now?
“A. Well, one thing it has given me, and that is a lot of headaches, since this injury; there are days that I will have a headache, days in and days out, I will have it; if anything makes me upset or nervous, it gives me that headache.
“Q. What about the effect of the injury you had formerly, as to giving you the headache?
“A. It acted almost the same; it gave me an awful bad headache.
“Q. Did you ever get over that?
“A. Yes; sir, I got over that.”
She further stated that in 1909 excessive menstruation was caused as a result of the injuries of the first accident. Upon being asked if any injury she received in that first accident in any way affected her in this case, she answered:
“The only things that seem similar, was the excessive menstruation.
“ Q. And you still have that?
“A. I have got better the last three or four months —it is when I am weakened, in a weakened condition that I am that way, and when I get strong I am better.
“Q. And that condition tends to make you nervous, does it not, that uterine trouble ?
“A. Well, I never had such a thing before I was hurt the first time.
“Q. I mean this accident.
“A. Well, this has kind of aggravated it a little bit.
‘ ‘ Q. So, then, you never really recovered from your former trouble, that is, the trouble to your uterus, it has always been bothering you, after your first accident, up to the present time?
*34 “A. Well, I had entirely gotten over that; it would not have returned if I hadn’t got hurt again.”
Upon her redirect examination her counsel plainly asked her:
“Q. These injuries that you have been testifying to, which resulted to you from this last accident — were they connected in any way with the injuries you received in the first accident?
“A. No, they were not, only just that one, that was very similar to the other, and that was the flowing spells I had — the excessive menstruation, and that was when I was weakened and down, it just aggravated it and made it worse; if I had not liad this accident, that would not have returned, because I had recovered from that entirely, I think. ’ ’
There was no allegation in the complaint of any aggravation by the accident in question to such previous injury. In Maynard v. Oregon R. R. Co., 46 Or., at page 22 (78 Pac. 983, 68 L. R. A. 477), passing upon the question of the recovery for the aggravation of a disability arising from a previous injury, it was held that “plaintiff should be confined to the injuries alleged for his damages. He may have received previous injuries. For these he cannot recover in this action, and, if the injuries now sustained are a mere aggravation of those previously received, he cannot recover therefor, because he has not so alleged in his complaint. That would be a different cause of action from that which he has now preferred. But if the injuries of which he complains are the direct result of the collision, then he may recover, notwithstanding it may have aggravated some former infirmity, provided such former infirmity is not the same as that of which he complains; that is to say * # he cannot recover * * for an aggravation thereof produced by the present accident, but must recover upon the strength of his own
Where the injuries complained of in an action for damages are somewhat connected with injuries received in a former accident, the rule stated in the Maynard case is a very salutary one, and should govern in order that the jury may properly determine from the evidence for what injuries the defendant is entitled to compensation.
The trial court plainly instructed the jury that plaintiff could not recover for injuries received in a prior accident, but only for injuries sustained on account of the negligence of defendant on March 18, 1912; but we find no instruction as to the aggravation of plaintiff’s former injury or ailment as detailed in her evidence. We are of the opinion that some such instruction as requested by defendant’s counsel should have been given. The other requested instruction as to non-inference of negligence from the mere happening of the accident was fully covered by the charge to the jury.
This we cannot do from the record without invading the province of the jury. That fundamental law ordains that the right of trial by jury shall be preserved. This mandate can be obeyed only by obtaining the verdict of a regularly impaneled jury upon legally admitted evidence under proper instructions as to the law. No good finding of fact can be predicated upon illegal evidence: State v. Rader, 62 Or. 37 (124 Pac. 195);
For the reasons above noted the judgment of the lower court will be reversed and the cause remanded for such other and further proceedings as may seem propel-, not inconsistent with this opinion.
Reversed.
