Jones v. Mikesh , 60 Idaho 680 ( 1939 )

In addition to the testimony referred to (as to permanent injury) in the majority opinion and by Judge Holden in his special concurrence and dissent, Mrs. Jones, mother of plaintiff, testified:

"Q. How does the injury affect your daughter at the present time, Mrs. Jones?"

. . . . . . . . . . . . . .

"A. She can't stand up and do any work more than two hours or two and one-half hours in the daytime, or if she stands up more than that her ankle swells to the extent that it is painful and she has to lie down or sit down until the pain leaves it; about two hours or two hours and a half is the most she can stand up to do anything, to do work."

"Q. Do you notice any difference in her nervous system, Mrs. Jones, since this accident?"

. . . . . . . . . . . . . .

"A. She was more nervous than she was before the accident since she has had the accident she is more nervous more or less ever since."

The injury occurred December 20, 1936, the trial was March 14, 1938, one year and almost 4 months after the injury. The requested instruction stated that "there was no evidence to the effect that plaintiff has suffered permanent injuries." If there was any substantial evidence to that effect the instruction was properly refused.

It seems to me that on the testimony of Dr. Beymer, Miss Jones' testimony as to her own pain and suffering and her mother's testimony as to the extent of her injuries existent at the time of the trial, clearly justified the court in refusing the requested instruction and it was for the jury not the court to determine the question of permanent injuries — which they might have considered from the doctor's testimony — amounted to not exceeding 10 per cent; also there was no prejudice because $781.40 of the verdict was for actual expenses, leaving only $1,218.60 as damages for pain, suffering, a comminuted compound fracture of the left leg, incapacity up to the time of the trial and continued debility at that time, certainly not excessive for the mere injury even if the deliterious results thereof continued only up to the time of trial. (See annotations in 102 A.L.R. 1393 and 46 A.L.R. 1346.)

Therefore I concur with Morgan, J.

Ailshie, C.J., joins in this concurrence.