Graham v. Coeur d'Alene & St. Joe Transp. Co., Ltd.

• Decision Date: 03 June 1915
• Citation: Graham v. Coeur d'Alene & St. Joe Transp. Co., Ltd., 149 P. 509, 27 Idaho 454 (Idaho 1915)
• Court: Idaho Supreme Court
• Parties: R. A. GRAHAM, Respondent, v. COEUR D'ALENE & ST. JOE TRANSPORTATION COMPANY, LIMITED, a Corporation, Appellant

149 P. 509

27 Idaho 454

R. A. GRAHAM, Respondent, v. COEUR D'ALENE & ST. JOE TRANSPORTATION COMPANY, LIMITED, a Corporation, Appellant

Supreme Court of Idaho

June 3, 1915

PLEADING-EVIDENCE-CONFLICT-PHYSICAL PAIN AN ELEMENT OF DAMAGE-MISCONDUCT OF JURY.

1. In an action for damages for personal injury the complaint must state all facts necessary to inform the defendant of all acts or omissions relied upon for a recovery, but only ultimate facts need be pleaded.

2. Although no damage is claimed because of loss of employment evidence showing that plaintiff suffered inconvenience and pain after the accident in attempting to perform his work is competent as tending to show the extent of his physical injury and suffering.

3. Where there is a substantial conflict in the evidence, a judgment based upon a verdict will not be disturbed upon appeal.

4. Physical pain suffered by the plaintiff as a direct result of the accident is a proper element of damage, although the evidence fails to show that he sustained financial loss by reason of his injury.

5. One of the attorneys for appellant filed his affidavit in support of a motion for a new trial, alleging that he had been told by members of the jury that the verdict was reached as the result of chance, and detailing certain purported facts which, if true, would amount to misconduct on the part of the jury. The respondent filed the affidavits of two members of the jury denying that chance was resorted to and showing that the conduct of the jury was in all respects, regular and proper. Held, that the trial judge was justified in reaching the conclusion that appellant's contention was not established.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Elder &amp Elder, for Appellant.

A careful reading of the complaint will disclose the fact that plaintiff failed to state a cause of action. He has not alleged or claimed damage from any permanent injury, and does not allege loss of earning capacity or loss of services by reason of the alleged injuries. The court should not have permitted the witness, Graham, testifying in his own behalf to give evidence of his sickness and his inability to work unless he had connected the same with the injury which he alleged he received by reason of the negligence of the defendant.

In no place does the plaintiff connect his alleged nervousness and mental disorder with the alleged injury which he received at the hands of the defendant. (Hutchinson on Carriers, secs. 1425, 1427; Maynard v. Oregon Ry. & N. Co., 46 Ore. 15, 78 P. 983; 68 L. R. A. 477; Wilkinson v. Detroit Steel & S. Works, 73 Mich. 405, 41 N.W. 490; Smith v. Postal Tel. & Cable Co., 174 Mass. 576, 75 Am. St. 374, 55 N.E. 380, 47 L. R. A. 323; Mitchell v. Rochester R. Co., 151 N.Y. 107, 56 Am. St. 604, 45 N.E. 354, 34 L. R. A. 781; Malcolm v. Richmond etc. R. Co., 106 N.C. 63, 11 S.E. 187.)

"The damages recoverable are dependent upon the circumstances of each particular case, and although the discretion of the jury must be largely depended on, the amount of recovery must be based on evidence." (St. Joseph etc. R. Co. v. Hedge, 44 Neb. 448, 62 N.W. 887; Western Union Tel. Co. v. Simpson, 73 Tex. 422, 11 S.W. 385; 13 Cyc. 136.)

Taylor & Hull, for Respondent.

It is an established rule of pleading that probative facts need not be pleaded. (McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478; Croft v. Northwestern Steamship Co., 20 Wash. 175, 55 P. 42; Carscallen v. Coeur D'Alene etc. Transp. Co., 15 Idaho 444, 98 P. 622, 16 Ann. Cas. 544.)

Mental and physical suffering are elements of general damage, the amount of which must be left to the good sense and sound judgment of the jury, whose verdict should not be disturbed except in case of a clear abuse of discretion. This is regardless of the fact whether or not the injury is permanent, and whether or not loss of earning capacity or loss of service has been alleged or proved. (Horn v. Boise City Canal Co., 7 Idaho 640, 65 P. 145; Denbeigh v. Oregon-Washington R. & N. Co., 23 Idaho 663, 132 P. 112; Jones v. City of Caldwell, 20 Idaho 5, 116 P. 110, 48 L. R. A., N. S., 119; Tarr v. Oregon Short Line Ry. Co., 14 Idaho 192, 125 Am. St. 151, 93 P. 957; Eagle Packet Co. v. Defries, 94 Ill. 598, 34 Am. Rep. 245.)

A person injured may be allowed to give testimony concerning his inability to perform his work in a proper manner after his injury for the purpose of proving the continuing effects of the same with regard to pain, even though no damage is claimed for loss of services. (Louisville & N. R. Co. v. Kemp's Admr., 149 Ky. 344, 149 S.W. 835; Craw v. Chicago City Ry. Co., 159 Ill.App. 100; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545.)

When the facts are disputed negligence is a question for the jury. (Wheeler v. Oregon R. & Nav. Ry., 16 Idaho 375, 102 P. 347; Fleenor v. Oregon Short Line Ry., 16 Idaho 781, 102 P. 897; Calkins v. Blackwell Lbr. Co., 23 Idaho 128, 129 P. 435; Staab v. Rocky Mt. Bell Tel. Co., 23 Idaho 314, 129 P. 1078.)

"In estimating damages in case of injury to a person the jury may take into consideration the physical pain and mental suffering undergone by the plaintiff as a result of the injury inflicted. Where pain is claimed as an element of damage the impossibility of definitely measuring the damages by a money standard is no ground for denying pecuniary relief." (13 Cyc. 137; Johnson v. Wells, Fargo & Co., 6 Nev. 224, 3 Am. Rep. 245, and cases cited; Alabama Gt. Southern Ry. v. Burgess, 114 Ala. 587, 22 So. 169.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

This is an action for damages for personal injuries alleged to have been sustained by respondent while landing from appellant's steamboat "Flyer" at the end of a journey during which he was a passenger upon the boat. It appears that respondent on the 5th day of August, 1912, procured and paid for transportation upon the "Flyer" from a point known as Bogel's Landing to a point known as Sorting Gap, which last mentioned place is a flag station where the steamboats of appellant stop when occasion requires to take on or discharge passengers or freight; that appellant owns no wharf or landing place there but makes use of the wharf of the St. Joe Boom Company; that on the occasion of the accident to respondent a tug belonging to the boom company was moored to the wharf and that a landing was attempted to be made by appellant's steamboat alongside the tug. There is conflict in the evidence as to whether or not a line was put out from the "Flyer" and made fast to the tug before the gangplank was placed in position for respondent to cross upon from one boat to the other, it being contended by respondent that no line was put out or made fast, while there was evidence introduced on behalf of appellant to the contrary. If a line was passed from the "Flyer" to the tug it had not been so adjusted, before the gangplank was put down and respondent went upon it, as to prevent the "Flyer" from drifting more than the length of the gangplank from the tug, for it is undisputed that while respondent was on the gangplank the end which had been placed upon the tug slipped off, throwing him into the water. It also appears that in falling respondent struck against the tug in such a manner that one of his ribs was broken.

It is contended by respondent and denied by appellant that before he went upon the gangplank he was directed to do so by one of the employees on the boat. Upon behalf of appellant it is contended, and denied by respondent, that as he was about to go upon the gangplank, he was warned by one of the officers of the boat not to do so.

While it is shown by the evidence that respondent required the services of a physician by reason of the injuries received no claim is made for damages on account of expenses incurred in this behalf, neither does he rely upon loss of time or employment as an element of damages, nor is it shown that the injuries he received are permanent, but he does rely for a recovery upon the physical pain he suffered...