Melone v. Sierra Ry. Co. of Cal.

Plaintiff was a passenger upon one of defendant’s trains, and was injured by a collision between his train and another, also belonging to defendant. He brought his action to recover damages for injuries inflicted, and the jury returned a verdict in his favor. From the judgment which followed defendant moved for a new trial, which the court refused. Defendant appeals from the judgment and from the order refusing it a new trial.

1. It is urged that the court erred in not allowing the challenge for bias interposed by defendant to one of the panel. But it has long been the rule of this court that it will not review the action of the trial court in this regard, unless prejudice or injury is shown. (People v. McGungill, 41 Cal. 429 ; People v. Gatewood, 20 Cal. 149 ; People v. Gaunt, 23 Cal. 157 ; People v. Weil, 40 Cal. 268 .) By the record before us it is not made to appear that defendant was forced to exercise a peremptory challenge upon the juror, or that defendant had exhausted his peremptory challenges. In no way, therefore,

2. It is contended that the court erred in refusing defendant’s application that a personal examination be made of the body of the plaintiff. This court has recently had occasion to consider this matter in Johnson v. Southern Pacific Co., 150 Cal. 535 , [ 89 Pac. 348 ], The facts in this case, however, disclose that plaintiff consented to submit to an examination by any physicians appointed by the court; that he had, while on the witness stand, offered an inspection of his injured arm to the defendant’s experts, Doctors Anderson, Congdon, and Gould. Doctors Anderson and Congdon had previously examined and inspected the plaintiff’s injuries, and Doctor Gould was given an opportunity to examine and inspect them, and was appointed by the court to make such examination. We see no force, therefore, in defendant’s objection.

3. In instructing the jury upon the measure of damages the court declared as one of the elements of damage, “Such sum as will compensate him for the expense, if any, he has paid or incurred in the employment of a physician and the purchase of drugs during the time he was disabled by the injuries, not exceeding the amounts alleged in the complaint.” It is objected to this instruction that the correct measure of damage in this regard is not the amount which he may have paid or become liable for, but the necessary and reasonable value of such services as may have been rendered him. Such reasonable sum, in other words, as has been necessarily expended or incurred in treating the injury. Such, unquestionably, is the true rule, yet we do not believe that the jury could have been led into error prejudicial to the defendant by the instruction which was given. The reasonableness of the expenses which plaintiff had incurred was not disputed.

4. The court further charged the jury that the plaintiff could recover for the value of his time during the period that he was disabled by the injury. It is said that there was no evidence as to what wages the plaintiff earned, or as to his earning capacity, and that it was, therefore, error for the court so to charge.- But the nature of plaintiff’s employment, the occupations at which he had worked, were in evidence, and even without any positive testimony as to the wages which he had previously earned there was sufficient to have war

5. The court instructed the jury that an element of damage was “the pain and anxiety that he has suffered or may suffer by reason of his injuries.” And, again, it instructed them that in estimating damages “you may take into consideration . . . the physical and mental suffering he may have sustained or may undergo in the future by reason of the injuries.” It is argued that mental suffering is not an element of damage. In support of this proposition is cited Newman v. Smith, 77 Cal. 22 , [ 18 Pac. 791 ], which was an action in fraud concerning real property, and the plaintiff sought a recovery for the worry, annoyance, and anxiety which the fraud had caused him. This court held that these were not elements of damage in such a ease. Monroe v. Dredging Co., 84 Cal. 516 , [ 18 Am. St. Rep. 248 , 24 Pac. 303 ], was an effort in an action by the personal representatives of the deceased to recover damages for the grief and mental suffering of the deceased’s next of kin, and it was held that in such a case this was not a permissible element of damage. In Morgan v. Southern Pacific Co., 95 Cal. 510 , [ 29 Am. St. Rep. 143 , 30 Pac. 603 ], an action by a mother to recover damages for the death of her child, the same effort was made to recover for the sorrow and mental anguish of the parent, and it was held that in that case it was not an element of damage. But, upon the contrary, where the suffering or mental anguish is endured by the victim it has been recognized as an element of damage since the case of Malone v. Hawley, 46 Cal. 409 . (See Sloane v. Southern California Ry. Co., 111 Cal. 668 , [ 44 Pac. 320 ].)

6. In instruction 18 the court informed the jury that an element of damage was “such reasonable sum as the jury shall award him on account of the pain and ahxiety that he has suffered or may suffer by reason of his injuries.” In instruction 19 the jury was informed that “in estimating the damages to be awarded you may take into consideration . . .■ how far his injuries are permanent in their character and results, as well as the physical and mental suffering he may have sustained or may undergo in the future by reason of the injuries.”

For which reason the judgment and order must be reversed and the cause remanded.

McFarland, J., and Lorigan, J., concurred.

Hearing in Bank denied.