
    John Comaskey vs. Northern Pacific R. R. Co.
    Opinion filed May 31st, 1893.
    Personal Injuries — Damages—Effect Upon Mental Powers — Instruction.
    In an action to recover for personal injuries, where there is no claim in the complaint or in the evidence that plaintiff’s mental powers were in any manner impaired by the injury, it is error for the trial court to instruct the jury that in estimating the damages they may take into account the effect of the injury upon plaintiff’s mental powers.
    Appeal from District Court, Cass County; McConnell, J.
    Action for personal injuries by John Comaskey against the Northern Pacific Railroad Company. Plaintiff had judgment, and defendant appeals.
    Reversed.
    
      Ball & Watson, for appellant.
    
      To recover damages for the impairment of the mental faculties, plaintiff must both allege and prove such injury. There being no such allegation or proof in this case, the court’s instruction that if the jury found for the plaintiff they should allow him damages for the effects of the injury on his mental powers — was clearly wrong. The rule laid down by the court was in-applicable to the facts proven, and was prejudical to defendant. Michigan Bank v. Eldred, 9 Wall. 544; Chicago v. Robbins, 2 Black. 418. Thompson on Charge to Jury § § 62, 63; Willis v. Railroad Co., 17 A. and E. R. R. Cases, 542.
    It will as a rule be regarded as error in the court to give- to the jury instructions, which are unsupported by evidence in the case for the reason that they tend to mislead the jury, even though abstractly correct in principle and law. Insurance Co. v. Baring, 20 Wall. 158; Webster College v. Tyler, 35 Mo. 268; Achltree v. Carl, 23 la. 394; Beaver v. Taylor, 1 Wall. 644; Clark v. Dutcher, 9 Cowan 674; Cane v. People, 3 Neb. 357. See, also, Battles v. Tail-man, 11 So. Rep. 247; Coal Creek, etc. v. Davis, 18 S. W. Rep. 387; Perot v. Cooper, 28 Pac. Rep. 391.
    
      Taylor Crum, for respondent.
    Respondent contends that “mental suffering” and “effects on mental powers,” mean practically the same thing. That damages may be recovered for pain of mind. Citing Farchild v. Cal. Stage Co. 13 Cal. 601; Railroad Co. v. Barron, 5 Wall. (U. S.) 90; Masters v. Warren, 27 Conn. 293; Penn. & 0. Canal Co. v. Graham, 63 Penn. St. 290; Sherwood v. Ry. Co., 46 N. W. Rep. 773.
   Bartholomew, C. J.

This is a personal injury case, and involves but a single point. There was a verdict and judgment for the plaintiff. The court, in its general charge to the jury, used the following language: “If you find for the plaintiff, he is entitled to a verdict for the full amount of damages suffered by him on account of his injuries, not exceeding ten thousand dollars; and in considering the extent of his injuries you will take into account the extent of injury, of bodily pain and suffering which he may have suffered, according to its degree, and the bodily injury, taking into account the loss of time, the effects of the injury on plaintiff’s health, its effects on his mental powers, its' effect on his bodily powers, upon his capacity for labor, the pursuit of an occupation, and the earning of money.” Exceptions to this instruction were saved, and it is urged that it assumes the existence of the facts therein stated, instead of leaving them to be determined by the jury. This is hypercritical. The court had already instructed the jury as to what facts they must find to exist before they could return a verdict for plaintiff. The court then said: “If you find for plaintiff he is entitled,” etc., which was exactly equivalent to saying, “if you find the facts to exist as hereinbefore stated, plaintiff is entitled,” etc. The instruction assumed nothing.

It is next urged that there is no evidence in the case tending to show that plaintiff’s capacity to earn money was in any manxxer impaired by the injuxy he x-eceived. We think othexwise. The testimony, as a whole, clearly tends to establish that plaintiff’s ability to eaxm money was actually impaix'ed by the injuxy he received.

But the third objection ux-ged against the instruction is fatal. There was no claiixx in the complaint or in the evidence that plaintiff’s xnental powex'S had beexx in any manner affected by the injuiy, yet the court dix-ected the juxy to take into account, in estimating plaintiff’s damages, the effect of the injuxy on his “mental powex'S.” It is conceded that xnental suffexing is a px-oper element of damages, and that the impairment of mental faculties is also a px'oper element, when claimed and px'oven, but it is neither .claimed nor px'oven in this case. This position is not contx'ovex'ted by plaintiff. Iiis contention is that the instruction did no more than to direct the juxy to take into account plaintiff’s mental suffex-ing. We cannot so constxnxe this language. It would be idle to follow counsel in his metaphysical dissertion upon abstx-act mental qualities. This language was addx-essed to men of avex'age business intelligence, and must be construed in its general acceptation. We speak of physical suffering, ancl of effect upon physical powers, and no one would claim for a moment that the two things were identical. Physical suffering may exist, and be an element of damage, and yet there be no impairment of the physical power to earn money; and the physical power to earn money may be greatly impaired, and an element for substantial damage, and yet there may exist no suffering whatever. True, the two, for a time at least, after an injury, are usually present together, but there, is no necessary connection between them. The same is true in the mental domain. Mental suffering may exist, and the mental powers — that is, the power to exercise the mental faculties for the purpose of earning money or otherwise — be in no manner affected. On the other hand the power to thus exercise the mental faculties may be impaired or destroyed, and yet there may be no mental pain. What the court intended is clear from the context. The jury were directed to consider “the effects of the injury on plaintiff’s health, its effects on his mental powers, its effects on his bodily powers, upon his capacity for labor, the pursuit of an occupation, and the earning of money.” The effect upon the mental powers, and the effect upon bodily powers, — and the one just as much as the other,— were to be considered directly as bearing upon plaintiff’s capacity to labor and to earn money. But as to the mental powers there was nothing of the kind in the case. Nor can we say this error was harmless, coming as it did; and, under the medical expert testimony in this case, its effect upon the jury is purely conjectural. It may not have been prejudicial to defendant, and it may. We cannot determine. Under these circumstances our duty is clear. The District Court is directed to l'everse its judgment, and order a new trial. -

(55 N. W. Rep. 732.)

Reversed.

All concur.  