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District Court of Appeal, Second District, Division 2, California.

TAYLOR et ux. v. POLE et al.*

Civ. No. 12163

Decided: June 23, 1939

Richard Dunnigan and Burton B. Crane, both of Los Angeles, for appellants. Nourse & Jones, of Los Angeles, for respondents.

Plaintiffs commenced this action to recover a judgment for damages which they suffered when the automobile in which they were riding was struck by an automobile driven by defendant Rupert Pole, whose application for a driver's license was signed by defendants Helen and Lloyd Wright. The jury returned a verdict in favor of plaintiff Mae M. Taylor in the sum of $650. The jury also returned a verdict in favor of Austin H. Taylor but allowed him no damages whatever, although it was shown that his automobile was damaged to such an extent that it was necessary to spend $117.64 to repair it. The trial court denied plaintiffs' motion for a new trial upon the condition that defendants pay into the court for the plaintiffs the sum of $117.64. In presenting this appeal plaintiffs contend that the sum awarded to Mrs. Taylor is so grossly inadequate as to compel the conclusion that the verdict was the result of passion and prejudice; and that the court committed prejudicial errors in giving instructions to the jury. No question is presented on the issue of the liability of the defendants.

An examination of the record discloses a very decided conflict in the evidence on the issue of the damages suffered by Mrs. Taylor. According to plaintiffs' evidence Mrs. Taylor received bruises and lacerations, one of which on the left shin required suturing. A nerve in her left leg was severed, and plaintiffs presented evidence that this injury was of a permanent nature resulting in the dragging of her left foot in walking and causing the left leg to become an inch smaller than the right leg. She also presented evidence to establish that the injuries received at the time of the accident caused her eyes to cross, headaches to frequently occur, a nervous affliction to the entire left side of her body, arm and leg and internal pain. Mrs. Taylor testified as to her previous good health and called medical experts who testified that in their opinion the injuries of which she complained, other than the lacerations and bruises above mentioned, were caused by a blow which Mrs. Taylor said she received on her head at the time of the accident. Physicians for Mrs. Taylor presented bills aggregating the sum of $1,075.

A very different picture is presented by the evidence of defendants. On their behalf evidence was introduced tending to establish that since Mrs. Taylor was five years of age she had been subject to fits in which she would lose consciousness and would on occasions injure herself while unconscious. These fits were variously referred to as “epileptic”, “hysterical” and “hallucinations”. In addition to presenting evidence that Mrs. Taylor's eyes were crossed long prior to the accident defendants' medical experts testified that all of the ailments of which she complained except the impaired use of the left foot were of an hysterical nature and that the hysteria antedated the accident. In the opinion of defendants' experts the injuries to Mrs. Taylor's left leg were not of a permanent nature.

It will be observed at once that the jury was confronted with the problem of deciding whether Mrs. Taylor received very severe injuries in the accident and was entitled to substantial damages or whether she was making false claims as to her injuries when as a matter of fact the injuries were only slight. The instructions given by the trial court were unusually numerous and lengthy. In view of the amount of the verdict, considered in connection with the extent of the plaintiffs' claims of injuries, it becomes necessary to scrutinize the instructions to determine if the jury was fairly instructed on the rules applicable to the measure of damages.

In accordance with plaintiffs' claims the court instructed the jury that plaintiffs were entitled to recover for aggravation of plaintiff's preexisting ailments caused by the negligent acts of defendant Pole. In doing so the court gave to the jury defendants' instruction No. XVIa, of which plaintiffs vigorously complain and which is as follows: “You are instructed that if you find that because of Mrs. Taylor's preexisting conditions, whatever they may have been, there was a change in her subsequent to the accident, and further find that such change was due to a combination involving aggravation of her then condition plus exaggeration on her part of the aggravation, and if you find that there is no testimony from which you can determine how much is aggravation and how much is not, then the plaintiffs have failed to establish by a preponderance of the evidence the amount of aggravation, and in such event you cannot arbitrarily fix the aggravation but will resolve the issue in favor of the defendant and against the plaintiffs because of plaintiffs' failure to establish by a preponderance of the evidence.”

This instruction is erroneous, and in view of the nature of the evidence in this case must be considered as so prejudicial as to require a new trial. It will be observed that the jury was told that if there was no testimony from which they could determine how much plaintiffs had exaggerated Mrs. Taylor's condition the jury should find for defendants on this issue. The jury should not have been confined to the testimony of the witnesses but in considering this and other points it was their duty to consider all of the evidence and they should have been so instructed. Numerous exhibits were received in evidence, including a large number of photographs presented by both parties. There is, however, a more serious and fundamental objection to this instruction. The rule is well established that the amount of the general damages must be left to the “sound discretion” (Michener v. Hutton, 203 Cal. 604, 265 P. 238, 59 A.L.R. 480) and “good sense” (Lee v. Southern Pac. R. Co., 101 Cal. 118, 35 P. 572) of the jury. “The law prescribes no definite measure in such a case, but leaves the amount of damages to the sound discretion of the jury.” Fernald v. Eaton & Smith, 40 Cal.App. 498, 180 P. 944, 945. The instruction in question does violence to this general rule, for the jury were told that they must determine from the testimony of the witnesses how much the plaintiffs were indulging in exaggeration and if they were unable to so determine they should award plaintiffs nothing whatever for the aggravation of preexisting ailments caused by the conduct of defendant Pole. It is a matter of common knowledge that it is the almost universal custom for plaintiffs in actions for damages for personal injuries to “put their best foot forward”; to present their injuries in the manner most favorable to their contentions. In making allowances for the propensities of mankind judges and juries realize that such is the custom. Even in sales of property a certain amount of “puffing” is allowed. Alexander v. Stone, 29 Cal.App. 488, 156 P. 998. On the other hand, it is common knowledge that it is the almost universal custom for defendants to minimize the extent of the injuries suffered by plaintiffs in actions of this kind and judges and juries make due allowances for such custom. Both parties as a rule employ experts, as they did in this case, to give their opinions in the manner most favorable to the parties engaging their services. In the instruction under review the trial court was induced to instruct the jury to place upon plaintiffs the burden of accurately establishing before the jury the exact amount of the injuries suffered by plaintiffs in the matter of aggravation of past ailments and to tell them that if they could not determine from the testimony how much the injuries suffered by Mrs. Taylor had been exaggerated they were to give her nothing on this account. In this the court erred, for it should have told the jury in simple language that it was within their sound discretion to determine from all of the evidence the amount of the damages, if any, which plaintiffs had suffered by reason of the aggravation of her preexisting ailments caused by the negligent acts of the driver of the car. An approval of the instructions under consideration would, in effect, bring about the abrogation of the “sound discretion” rule which has long been applied in this state to actions for personal injuries.

The judgment is reversed and the cause remanded for retrial upon the sole issue of the amount of damages suffered by plaintiffs.

WOOD, Acting Presiding Justice.

I concur: McCOMB, J.

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