Hatchimonji v. Homes

• Citation: 38 Ariz. 535,3 P.2d 271
• Decision Date: 17 September 1931
• Docket Number: Civil 3058
• Parties: K. HATCHIMONJI, Appellant, v. A. G. HOMES and EVALINE H. HOMES, Appellees
• Court: Supreme Court of Arizona

3 P.2d 271

38 Ariz. 535

K. HATCHIMONJI, Appellant, v. A. G. HOMES and EVALINE H. HOMES, Appellees

Civil No. 3058

Supreme Court of Arizona

September 17, 1931

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.

Mr. C H. Young (Mr. William G. Christy, of Counsel on Appeal), for Appellant.

Mr. F H. Layman, Mr. Samuel C. Jefferies and Mr. B. L. Rudderow for Appellees.

OPINION

ROSS, J.

This is an appeal by K. Hatchimonji from a verdict and judgment giving to A. G. Homes and Evaline H. Homes, his wife, damages for personal injuries sustained by the latter in a collision between the appellant's automobile, while being driven by Aimee Komura, alleged to be the owner's agent, and the Homes automobile, being driven by Evaline H. Homes.

The appellant, at the close of the case, moved for an instructed verdict upon the ground that the undisputed evidence was that the driver of his car at the time of the accident was not acting as his agent within the scope of her authority. The denial of this motion is assigned as error. For the same reason, it is said the judgment is contrary to the evidence and to the law. Appellant's ownership of the offending automobile is undisputed. Prima facie the driver thereof was at the time his agent, or servant, acting in the line of duty. Lutfy v. Lockhart, 37 Ariz 488, 295 P. 975; Baker v. Maseeh, 20 Ariz. 201, 179 P. 53. In addition to this presumption, it was shown that Aimee Komura stated at the time of the collision that appellant had told her to take his car and have it washed, and that she was on that mission when the cars collided. It was also in evidence that appellant stated after the accident that he had told Komura to take the auto to a washing-shed and have it cleaned. This is denied by appellant, and there is testimony tending to show that Aimee Komura was at the time of the accident using the car for her own account and pleasure and not in behalf of the appellant. It was for the jury to pass upon this conflict, and, since there is evidence to support its conclusion, under the rule we will not disturb it.

It is said this instruction is not a correct statement of the law concerning damages for future mental pain and suffering:

" . . . In determining what is reasonable compensation, gentlemen of the jury, there are a few elements that you are entitled to take into consideration. You are entitled to take into consideration any and all mental pain and suffering which the plaintiff has sustained in the past or might reasonably be expected to sustain in the future, if any. You are entitled to take into consideration whether or not any injury that resulted as a direct result from the accident is a permanent or a temporary injury."

The particular statement complained of is: "You are entitled to take into consideration any and all mental pain and suffering which the plaintiff . . . might reasonably be expected to sustain in the future, if any." It is said that the proper rule restricts compensation for future pain and suffering to such as are "reasonably probable or certain" to follow the injury. Future pain and suffering from a present injury can be estimated only on probability. If the injury is severe and permanent, observation and experience teach us that the suffering will be proportionately great; if slight and temporary, that it will be proportionately small. The common sense and honesty and fairness of the jury would, we think, react to the above language in the same way as to the language proposed by appellant. Juries do not ordinarily look for or discover fine distinctions in the court's instructions. Damages "reasonably to be expected" from an injury are, to the ordinary mind, damages that are "reasonably probable or certain." Instructions as to future damages for pain and suffering should not be so loosely worded as to give the jury the impression that they may guess or speculate what such damages may be. Indeed the jury, because of the wide discretion reposed in them, should be warned against speculative damages and told that damages can be assessed only when authorized and supported by the evidence. In other words, the jury should be reasonably certain the damages assessed will be sustained, and should be advised by the court. 17 Corpus Juris, 1075, §...