Clevenger v. Fonseca , 55 Wash. 2d 25 ( 1959 )

Donworth, J.

(dissenting in part) — I dissent from that part of the majority opinion relating to instruction No. 24. The third paragraph thereof permits the jury to allow respondent compensation in money for “mental pain and suffering” in addition to physical pain and suffering which is the subject of the second paragraph of the instruction. The third paragraph reads as follows:

“The law allows one injured through the negligence of another compensation in money for mental pain and suffering as well as for physical pain and suffering. Mental suffering may arise out of the physical injury, and depends upon the extent, character and probable duration of the injury. It includes all of the various forms that mental suffering may take which will vary in each case with the temperament of the individual, his ability to stand shock, the nature and character of his injuries, and the mental worry, distress, grief or mortification which may be sustained by him thereby. If one be handicapped by physical injuries from performing the tasks incident to his station in life, or if the character of the injuries be such as to cause mental anxiety or fear of physical suffering reasonably certain to continue in the future, you may consider such elements in assessing damages for mental suffering. In estimating such mental suffering, if you find such exists, you may also consider whether or not plaintiff suffered mentally because plaintiff was deprived by injuries of the pleasures and satisfactions of life enjoyed by those of the same age of sound bodies.”

The last paragraph relates to both physical and mental pain and suffering. It states:

“The law has not furnished us with any fixed standards by which to measure pain, suffering or disability. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by the law as I have given it to you.”

Our cases sustain the rule that where, as in this case, there is no evidence as to mental pain and suffering other than the pain and suffering naturally incident to a physical injury like the one complained of, it is improper to instruct upon that element, because it can only lead the jury into the realm of speculation. Bennett v. Oregon-Washington R. & Nav. Co., 83 Wash. 64, 145 Pac. 62 (1914), and cases cited therein; Nelson v. Fairfield, 40 Wn. (2d) 496, 244 P. (2d) 244 (1952).

In my opinion, instruction No. 24 goes beyond both the allegations of the amended complaint and the evidence. The amended complaint did not allege any specific items of mental suffering. There was no testimony as to respondent’s inability to stand shock, or that she suffered mental worry, distress, grief, mortification, or mental anxiety in addition to her physical pain and suffering (which is fully described in the majority opinion).

In short, the instruction permitted the jury to speculate and infer from the testimony regarding respondent’s physical pain and suffering that the items of damage set out in the third paragraph of the instruction relating to mental pain and suffering did, in fact, occur.

In my view, the instruction was not only erroneous (as held by the majority) but constituted prejudicial error. I am unable to say that the inclusion therein of the items of damage relating to mental pain and suffering did not materially affect the amount of the jury’s verdict.

I would remand the case for a new trial on the issue of damages only.

Weaver, C. J., and Hill, J. concur with Donworth, J.