Hogan v. Santa Fe Trail Transportation Co. ( 1938 )

The opinion of the court was delivered by

Wedell, J.:

This was an action to recover for property damages and personal injuries -resulting from a collision of motor vehicles. Judgment went for plaintiff, and the defendants, the Santa Fe Trail Transportation Company, a common carrier, and its insurer, the Standard Accident Insurance Company of Detroit, Mich., appeal.

Numerous assignments of error are alleged. We shall first treat the contention the demurrer to plaintiff’s evidence should have been sustained. This requires a review of plaintiff’s evidence. Briefly stated, the material portion thereof was substantially as follows: Plaintiff was traveling from Junction City to Pittsburg. The accident occurred in the daytime of March 13,1937, on federal highway No. 59, after plaintiff had left Princeton. This highway runs generally in a northerly and southerly direction, but the accident occurred on a mile stretch of road which runs east and west. This mile of road was on a level tract of land. It was snowing. The wind was from the north and it had driven the snow from the north edge of the pavement with the result that side was mostly free from snow. The snow had drifted into the south ditch and had also covered the south side of the highway sufficiently to make driving there difficult. Plaintiff could see the entire distance of the one-mile stretch. When she entered on that stretch no other vehicle was on it. Observing this condition, she drove on the north or on her left side of the highway. After proceeding about a half mile she observed the truck of the defendant transportation company coming west at the end of the mile stretch. She then again tried the south or right-hand side of the road and again found driving difficult there and returned to the north side until she got nearer the truck. She continued to watch the truck and decided to turn back to the south side in time to permit the truck to pass. While the truck was on the north side and 200 feet east she turned to cross to the south side. When she turned southeast the truck was still on the north side of the road. By reason of the snow-covered condition on the south side she was obliged to give her attention to that side of the road as well as to the truck. This she did. .Her testimony was:

“A. I had to keep one eye or the corner of my eye on the edge of that pavement, on the north side of that pavement, all the time.

“Q. Well, that is what you did? A. But I saw the truck. I never missed it. I had the truck in my mind, in my eye, all the time.”

In attempting to reach the south side she drove two feet over on the right shoulder. After getting over to the south side and “straightening out,” she looked up and the truck was about thirty feet away. The truck was, in her own words, “coming down on my side of the pavement, right at me, diagonally across, clear across the pavement, so that I couldn’t get by it on either side.” Defendant’s vehicle consisted of a truck and trailer. Plaintiff was driving her car about twenty-five miles per hour. The road was snowy and slippery. The truck was being driven at least thirty-five miles per hour.

A. N. Affolter, a farmer and filling-station operator, who lived just around the bend at the east end of this mile stretch, testified in substance: He went to the place of the accident a half or three-quarters of an hour after it occurred. In that time there was no change in the weather conditions. When he got to the slab his view was unobstructed to the scene of the accident. He could see the road the entire distance of the mile stretch. When he reached the place of the accident the front wheels of the truck were in the south ditch, and the hind wheels of the semitrailer were partly on the slab. The truck was facing southwest. The position of plaintiff’s car had been changed by that time.

There is no dispute, however, about the fact that the collision occurred on the south shoulder of the highway. There is no question concerning the fact there was property damage and that there were personal injuries. The extent of the damage will be treated later.

Did the court err in overruling defendant’s demurrer to plaintiff’s evidence? On this question the trial court adopted plaintiff’s contention that the question of the truck driver’s negligence and plaintiff’s contributory negligence were jury questions. Plaintiff’s contention was in substance: Considering the conditions of the road she had a right to travel on the north side, providing she moved over in sufficient time to permit the truck driver to pass; the latter knew or should have known the conditions of the road, and the difficulty of traveling on the south side; he should have slowed down when he saw plaintiff’s difficulty in traveling on the south side; the truck driver had the right to assume plaintiff would endeavor to reach the south side in time for him to pass; plaintiff turned to the south side while the truck driver was still on the north side of the road and when 200 feet away; the truck driver could have passed on the north side; if the truck had been under proper control and the driver of the truck had kept his view on plaintiff he would have seen the plaintiff turn to the south and could have avoided running into her car on the south shoulder of the highway; plaintiff was guilty of no contributory negligence, but in any event the question was for the determination of the jury.

The pertinent statute now touching the subject of travel on a certain side of the road, namely, section 37, chapter 283, Laws of 1937, was not in effect at the time of the collision and need not be considered. That a driver, so long as he has the road to himself, for a distance as far as he can see, may travel on any portion thereof, has been definitely determined. (Gardner v. Leighton, 144 Kan. 335, 338, 58 P. 2d 1111, and cases there cited.) Whether plaintiff, under all the circumstances, moved over in time for defendant to pass, and whether the driver of the truck exercised the proper degree of care before plaintiff started to turn south, and whether both parties exercised the proper degree of care after plaintiff had started to turn south, cannot be said to constitute questions which can be answered as a matter of law. They were proper questions for the determination of the jury. Touching the demurrer, defendants stress mostly the alleged contributory negligence of the plaintiff. In numerous cases we have said in substance what was again recently said in Jones v. McCullough, 148 Kan. 561, 85 P. 2d 669, as follows:

“In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and, if so considered, there is any evidence which sustains the plaintiff’s case, the demurrer should be overruled.

“In determining whether a plaintiff is guilty of contributory negligence, when tested by demurrer or on motion'for a directed verdict, the question must be submitted to the jury if the facts are such that reasonable'minds might reach different conclusions thereon.” (Syl. ¶¶ 1, 2.)

The application of these principles to the facts in the instant case requires us to affirm the ruling on the demurrer.

The special verdict of the jury was as follows:

“1. Was the plaintiff on the north or defendant’s right-hand side of the road just shortly prior to the accident? A. Yes.

"2. How far was plaintiff from defendant when she turned to the south side of the road? A. 200 feet.

“3. Did defendant driver turn to south side of the road before or after plaintiff turned to the south from the north side of the road? A. After.

“4. Was the driver of truck, when approaching plaintiff, driving too fast under the known conditions then existing? A. Yes.

“5. If you answer the last above question ‘yes,’ was it negligence on the part of the driver to drive at the rate of speed he was then driving? A. Yes.

“6. Did the driver of the truck negligently drive the same, or negligently permit the same to run, onto his left-hand side of the highway? A. Yes.

“7. Did plaintiff drive onto her right-hand side of the road in seasonable time to permit the driver of the truck to continue on his right side without collision? A. Yes.

“8. Did plaintiff know that the truck was driven onto her right-hand side before it was too late for her to avoid the collision? A. No.

“9. If you find that the driver of the truck was negligent, either because he was driving too fast, or by driving or permitting his truck to run onto the south side of the road, then was such negligent act a substantial factor in producing the collision? A. Yes.

“10. Was plaintiff guilty of any negligence which was a substantial factor in producing the collision? A. No.

“11. If you find for plaintiff, how much do you allow — ■

(1) For damages to the car? A. $155.43.

(2) For expenses from the time of the accident to plaintiff’s arrival home? A. $19.15.

(3) For doctor bills? A. $100.

(4) For pain and suffering? A. $1,000.

(5) For loss of earnings? A.-.

(6) For loss of enjoyment from being unable to play the violin? A. $4,000.

“12. How close was plaintiff to defendant when she noticed that he was on the south side of the road? A. 40 feet.

“13. What were the earnings of plaintiff for one year preceding the accident? A. Not any.

“14. Did the negligent acts of Mrs. Hogan contribute to cause the accident? If you answer in the affirmative, state how. A. No.

“15. Do you find the driver of the truck guilty of negligence? If you answer in the affirmative, state what the negligence consisted of. A. Yes. He was negligent in not making sure that car of plaintiff was not moving. Also on crossing onto south side of road. Driving at too great a speed, considering condition of road and weather.”

Plaintiff complains concerning the wording of some of the special questions. No objection was made thereto at the time of the trial and a complaint at this time is too late.

Complaint is made concerning certain instructions on the ground they indicated the defendant was at fault. The instructions are not subject to that complaint. Objection is made certain instructions were not adequate. No fuller or more complete instructions were requested and no objection was made to those given. Under such circumstances no reversible error exists. (Skaer v. American Nat’l Bank, 126 Kan. 538, 541, 268 Pac. 801; Birdsong v. Meyers, 141 Kan. 140, 143, 40 P. 2d 430; Waltmire v. Ford, 147 Kan. 732, 740, 78 P. 2d 893; G. S. 1935, 60-2909.)

Defendants urge the trial court erred in failing to give an instruction on the doctrine of last clear chance. The instructions fairly covered the issues joined by the pleadings. No complaint at the time of trial was made on the ground the instructions were inadequate as to any issue urged and no instruction on that question was submitted by defendants. Assuming, without deciding, that such an instruction was applicable, no reversible error is disclosed.

Defendants contend the trial court erred in refusing to render judgment in their favor on the special verdict. That verdict is in harmony with the general verdict and the ruling was proper. That is, the verdicts were in harmony insofar as damages in some amount were concerned.

The real difficulty as to both verdicts is the item of $4,000 contained in finding number 11 (6). That question and that finding were:

“11. If you find for plaintiff, how much do you allow (6) for loss of enjoyment from being unable to play the violin? A. $4,000.”

Defendants insist that item cannot stand for the reason it does not rest upon a substantial basis, and damages therefor cannot be assessed in money. In other words, the contention is damages awarded for “loss of enjoyment” resulting from being unable to play a violin would or might be based upon pure conjecture and speculation. They also contend $4,000 for that item is excessive, even though it should be held “loss of enjoyment” constitutes a proper element of damages. Defendants also urge the instructions in the case did not warrant or contemplate recovery for “loss of enjoyment.” That contention concerning the instructions is probably correct. The trial court, however, submitted this particular special question and we shall meet the issue on the theory it is properly before us. We do that for another reason. Plaintiff was asked a question which forms the basis of recovery on that item. Defendants objected to it and the objection was overruled. We are, therefore, obliged to meet the issue on the question of the alleged improper admission of testimony. The question and answer were:

“Q. Now state whether or not, outside of the earning of money, it meant anything to you and, if so, what? A. It was my life work. It is just part of me. Every place I go, if I don’t have my violin, why I wonder where it is. I have played it all my life. I play solos — solos by myself, with a piano accompaniment.”

Plaintiff was an accomplished violinist. She had studied under artists at home and abroad. She had given individual violin lessons and she had directed orchestras. She had played solos in public. Plaintiff was sixty-three years of age. For a year preceding the accident she had taken a vacation. Her earnings for the year prior to her vacation had been approximately $1,200. The particular injury here involved was the breaking of the proximal end of the fifth metacarpal bone of her left hand. It resulted in a permanent stiffening of the little finger. The finger was deprived of its strength and its lateral motion, with the result she is unable to play the violin. There were minor injuries which are not related to the immediate problem.

In support of defendants’ contention item 11 (6) did not constitute a proper element of damages, are cited: Consolidated Smelting Co. v. Tinchert, 5 Kan. App. 130; City of Columbus v. Strassner, 124 Ind. 482, 25 N. E. 65; American Strawboard Co. v. Foust, 12 Ind. App. 421, 39 N. E. 891; Pittsburg, etc., Ry. Co. v. O’Connor, 171 Ind. 686, 85 N. E. 969; South Bend Brick Co. v. Goller, 46 Ind. App. 531, 93 N. E. 37. We do not consider the first case cited as helpful on the particular issue here involved. In the first Indiana case cited that court held:

"An instruction to the jury that they should consider in measuring the damages any ‘lack of personal enjoyment’ occasioned by the' injury, was erroneous.” (Syl.)

In the course of that opinion it was said:

“Instruction numbered twenty-one was erroneous, in that, it informed the jury that they should take into consideration in measuring the damages which they would assess, in case they found for the appellee, any ‘lack of personal enjoyment’ occasioned by the injury. In other respects we are satisfied with the instruction, but in the respect mentioned we are of the opinion that it is erroneous. Counsel for the appellee have cited us to no authority in support of the instruction, and we have found none'. The question of damages, like other legal propositions, should rest upon some substantial basis. The following inquiries, therefore, suggest themselves: What is ‘personal enjoyment’? How are we to ascertain to what extent it is possessed by a human being? How can its absence and the cause thereof be demonstrated? If a person for any cause has been deprived of ‘personal enjoyment’ how are we to go about adjusting his loss upon a money basis? These questions seem to be pertinent, but unanswerable, and suggest an insuperable difficulty to the measurement of damages because of loss of ‘personal enjoyment.’ We are unable to say to what extent the objectionable part of the said instruction influenced the jury in measuring the damages which were assessed against the appellant, and, therefore, cannot hold that it was not injured by the instruction.” (p. 489.)

In the second Indiana case cited a contrary instruction, approved by the decision in the second case, was later specifically overruled in the South Bend Brick Company case. In the latter case the Indiana court reaffirmed its former decision in the case of City of Columbus v. Strassner, supra.

In the case of Locke v. I. & G. N. Ry. Co., 25 Tex. Civ. App. 145, 60 S. W. 314, it was held:

“Loss of capacity for the enjoyment of the pleasures of life, though alleged as a basis for damages, is too vague' an element to admit, of evidence to sustain it.” (Syl. ¶ 3.)

That the cause of an injury, such as the negligence of a defendant in personal-injury cases, cannot be grounded on mere conjecture or speculation has, of course, been definitely established. See Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472, and numerous cases there cited. Also, Stephenson v. W. R. Grimshaw Co., 148 Kan. 466, 83 P. 2d 655. The same rule has been applied even in workmen’s compensation cases, where the cause of disability rests upon surmise, conjecture or speculation. (Fair v. Golden Rule Defining Co., 134 Kan. 623, 7 P. 2d 70; Whitaker v. Panhandle Eastern P. L. Co., 142 Kan. 314, 46 P. 2d 862.)

The same rule has been applied in various damage actions for breach of contract where the alleged resulting damage was too remote, speculative and uncertain. (Railway Co. v. Thomas, 70 Kan. 409, 78 Pac. 861; Altman v. Miller, 128 Kan. 120, 276 Pac. 289; Labette Petroleum Co. v. Cities Service Gas Co., 137 Kan. 75, 19 P. 2d 470.) And in actions to recover damages for personal injury which prevented plaintiff from engaging in speculative ventures. (Railway Co. v. Posten, 59 Kan. 449, 53 Pac. 465.) And to an action for damages for loss of future profits in an unestablished business. (States v. Durkin, 65 Kan. 101, 68 Pac. 1091.) And to an action for damages by a lessor against a lessee for oil alleged to have been drained from under the land of the lessor where the proof was speculative. (Corr v. Continental Oil Co., 145 Kan. 78, 64 P. 2d 30.) These are only a few of our own cases which might be cited on the general principle that recovery of damages may not be had where the cause of the injury is too remote and speculative and where the alleged resulting damages are too conjectural and speculative to form a sound basis of measurement.

The precise question of whether recovery may be had for “loss of enjoyment,” such as that claimed in the instant case, is one of first impression in this court. A few preliminary considerations may be helpful. While many states hold that recovery may be had for mental anguish which is not preceded by or accompanied with some physical injury (8 R. C. L. 518, and cases there cited), the general rule in this state is to the contrary. (City of Salina v. Trosper, 27 Kan. 544; A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453; Cole v. Gray, 70 Kan. 705, 79 Pac. 654; Lonergan v. Small, 81 Kan. 48, 105 Pac. 27; Whitsel v. Watts, 98 Kan. 508, 159 Pac. 401; Hendren v. Arkansas City, 122 Kan. 361, 252 Pac. 218.) In the instant case there was physical injury.

'In the Lonergan case, this court held recovery may be had for mental suffering, which is the proximate and natural result of intentional wrong, although there was no battery or bodily injury inflicted. This court has also held where mental suffering is induced by mutilation or disfigurement of the person such mental suffering may be considered as a proper element of damages. (Scott v. Cowan, 114 Kan. 32, 217 Pac. 698.) In that opinion, after reviewing numerous authorities, this court said:

“The rule was early announced in Kansas that:

“ ‘Where mental suffering is an element of the physical pain, or is a necessary consequence' of the physical pain, or is the natural and proximate result of the physical injury, then we suppose that damages for mental suffering may be recovered.’ (City of Salina v. Trosper, 27 Kan. 544, 564.)

“This rule has been followed in numerous cases decided by this court. (Railroad Co. v. Chance, 57 Kan. 40, 45 Pac. 60; Railway Co. v. Wade, 73 Kan. 359, 85 Pac. 415; Baisdrenghien v. Railway Co., 91 Kan. 730, 139 Pac. 428; Ramey v. Telegraph Co., 94 Kan. 196, 146 Pac. 421; Shelton v. Bornt, 77 Kan. 1, 93 Pac. 341.)” (p. 34.)

In Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721, it was said:

“And, as we view the matter, the plaintiff’s face having been disfigured and his speech having been impaired, to permit him to say that it embarrassed and humiliated him did not introduce an element not a natural result of his injury. On the contrary, it would seem that if one caused an injury to another which affected his appearance he could just as well assume that the disfigurement would humiliate and embarrass him as that the injuries would cause pain and suffering.” (p. 714.)

It has also been held that where fright results in a fall and the fall results in personal injuries, the injured party may recover for both the mental anguish and the bodily injury resulting from the negligent acts. (Clemm v. Atchison, T. & S. F. Rly. Co., 126 Kan. 181, 268 Pac. 103.)

Plaintiff stresses the language employed in Railroad Co. v. Chance, 57 Kan. 40, 45 Pac. 60, where it was said:

“Damages for the permanent deprivation of health and of the capacity to work and enjoy life should therefore be limited to the period extending from December 1, 1890, to October 18, 1891. (Busw. Pers. Inj., § 20.)” (p. 48.)

Analysis of that opinion will disclose the precise point presented here was not an issue in that case and cannot be regarded as authority for plaintiff’s contention.

It is true that “loss of enjoyment,” and “loss of enjoyment of life,” under varying circumstances have been held to constitute proper elements of damage. (Haynes v. Railway, 101 Me. 335, 64 Atl. 614; Benson v. Superior Mfg. Co., 147 Wis. 20, 132 N. W. 633; Haucke v. Beckman, 96 N. J. L. 409, 115 Atl. 653; Bassett v. Milwaukee N. R. Co., 169 Wis. 152, 170 N. W. 944; Haeussler v. Consolidated Stone & Sand Co., 3 N. J. Misc. R. 159, 127 Atl. 602; Kasiski v. Central Jersey Power & Light Co., 4 N. J. Misc. R. 130, 132 Atl. 201; Galveston Electric Co. v. Biggs, 14 S. W. [2d] 307; Nees v. Goldman, 109 W. Va. 329, 154 S. E. 769; Reed v. Jamieson Investment Co., 168 Wash. 111, 10 P. 2d 977; Budek v. City of Chicago, 279 Ill. App. 410; Kramer v. Chicago, M., St. P. & P. R. Co., 226 Wis. 118, 276 N. W. 113.)

Plaintiff cites District of Columbia v. Woodbury, 136 U. S. 450, 34 L. Ed. 472, and McDermott v. Severe, 202 U. S. 600, 50 L. Ed. 1162. Those cases are not exactly in point on the issue of loss of enjoyment.

We shall not indulge in a detailed analysis of the other cases above cited in an already too lengthy opinion. This court, after careful consideration of the entire subject, has concluded to hold that loss of enjoyment resulting from being unable to play the violin is too speculative and conjectural to form a sound basis for the assessment of damages. It is well to bear in mind the jury allowed separately for pain and suffering resulting.from the injury. That item is not in dispute. It will also be well to observe the jury allowed nothing for loss of earnings. Plaintiff contends the last-mentioned finding should be construed to apply only to past earnings and not to future earnings, for the reason the jury also specifically found there was no loss of earnings for the year preceding the accident. Question number 11 (5) easily could have been framed to make clear such distinction. It might have been separated so as to cover the loss of both past and future earnings. It was not SO' framed and we cannot well read the interpretation contended for into it.

Plaintiff urges that in question 11 (6) she might just as well have asked how much the jury allowed for permanent injury, and the element of loss of enjoyment from being unable to play the violin would have been included therein. Not properly in view of what we have heretofore said. Moreover, we would still have the question squarely presented on the improper admission of the evidence, which we have previously discussed. Furthermore, question 11 (6) leaves this court no room to say the $4,000 or any part thereof was awarded for permanent injury. That question is clear, and an award for permanent injury cannot be read into it. Then, too, even though the court should be inclined to consider the $4,000 item as having been intended to include permanent damages, the court would have no possible way of determining how much thereof was allowed for permanent injuries. It follows the judgment must be modified by a reduction in the sum of $4,000. Otherwise the judgment will be affirmed. It is so ordered.