Two actions for personal injuries tried together. One was brought by the plaintiff, Eunice Greenfield, for personal injuries sustained by her, and the other by John F. Greenfield, her husband, for damages to him consequent upon the injury to his wife. There was a verdict for Mrs. Greenfield for one dollar and for Mr. Greenfield for one cent. They appeal from the orders denying their separate motions for a- new trial.
Nominal damages do not compensate for a substantial injury. If the injury is nominal damages not substantial in amount are compensatory. When the jury finds liability and the evidence shows substantial. damages a nominal award will not do. See Conrad v. Dobmeier, 57 Minn. 147, 58 N. W. 870; Rawitzer v. St. Paul City Ry. Co. 94 Minn. 494, 495, 103 N. W. 499; note L.R.A. 1915F, 30; Ann. Cas. 1916B, 384. But when the evidence justifies a finding that there was an injury through the negligence of the defendant, trivial in character,' and beyond that feigned, an award of a few cents or a dollar will not be disturbed as inadequate. Marquardt v. Hudson Co. Gas Co. (N. J.) 59 Atl. 1054; Mill v. Roulliard, 168 Iowa, 162, 149 N. W. 875; Weinberg v. Metropolitan St. Ry. Co. 139 Mo. 286, 40 S. W. 882; Allison v. Gulf C. & S. F. Ry. Co. (Tex. Civ. App.) 29 S. W. 425; Jackson v. Dallas Fair Park Amusement Assn. (Tex. Civ. App.) 155 S. W. 1181; Brooks v. Ludin, 1 N. Y. Supp. 338, affirmed 6 N. Y. Supp. 510; Locke v. Independence, 192 Mo. 570, 91 S. W. 61. In considering a situation such as that supposed the court in the case last cited said:
‘’“’The only real contention in the case * * * is that the verdict ought to be set aside and the judgment reversed because the plaintiff suffered serious injuries from her fall on the sidewalk and she was only awarded nominal damages. * * * On the other hand it is argued in like manner on this evidence that the plaintiff sustained no serious injury from her fall but that the many injuries of which she thereafter complained were feigned. There was evidence tending to support each theory — with the weight of that evidence we have nothing to do. It was the exclusive province of the jury to determine that issue of fact, and, by their verdict for nominal damages, they did determine it in favor of the defendant.”
After her injury Mrs. Greenfield remained at the play and at its close went to a drug store and telephoned her doctor, but was unable • to reach him. He did not attend her until the following Monday. There were no objective symptoms of injury except a slight swelling of the left hip. The doctor attended her for some time. His testimony was unsatisfactory and was not such as to require a finding of a definite
A consideration of the evidence brings us to the conclusion that the jury coiild find that nothing more than a nominal injury was sustained by Mrs. Greenfield and that otherwise her injuries were assumed. We do not mean that we would find so. We are not finding the facts. We mean that a jury might so find without an apparent disregard of their duty. The right of recovery in Mr. Greenfield is derivative, and, if his wife has none for substantial damages, neither has he.
Counsel did not call the attention of the court to the omission of the element of-materiality. If they did not observe the omission it did not likely affect or mislead the jury. It is not such error as should result in a new trial. The history of the maxim and some very practical observations relative to it are found in 2 Wig-more, Ev. §§ 1008-1015. And see 2 Thompson, Trials, §§ 2423-2425; 5 Jones, Ev. § 903.
Orders affirmed.