Johnson v. Wells, Fargo & Co.

year; and the plaintiff having refused to pay the same, defendant advertised the property for sale for the payment thereof. It is also alleged that if not restrained he will sell it, and thereby damage the plaintiff in the sum of three hundred and sixty-four dollars and sixty cents. The pleading concludes with a prayer for a preliminary restraining order, and that it be made perpetual upon the hearing. The trial resulted in a judgment dismissing the action, from which plaintiff appeals.

The judgment is undoubtedly right, not upon the ground taken by the Judge below-namely, that the assessment in Douglas County was illegal and void-but for the reason that the complaint does not make out a case for a restraining order, injunction, or other equitable relief.

Equity will not take jurisdiction or interpose its powers when there is a full, complete and adequate remedy in the ordinary course of law; that is, when the wrong complained of may be fully compensated in damages, which can easily be ascertained, and it is not shown that a judgment at law cannot be satisfied by execution. (See Sherman v. Clark, 4 Nev. 138.) In this case, the damages from the apprehended injury are exactly stated in dollars and cents, and there is no showing that if a judgment were recovered for the same it could not be collected. The remedy in the ordinary course of law is shown by the complaint itself to be complete and adequate hence this proceeding was properly dismissed. Judgment affirmed.

FRANK F. JOHNSON, RESPONDENT, v. WELLS, FARGO & CO., APPELLANT.

PRACTICE ACT, SEC. 332-STATEMENT ON APPEAL FROM ORDER. The word "order," in section three hundred and thirty-two of the Practice Act, providing for a statement on appeal from a judgment or order, does not refer to the ordinary order upon a motion for new trial.

STATEMENT ON APPEAL FROM NEW TRIAL ORDER. On appeal from an order granting or refusing a new trial, any matter properly pertaining to such order, except it may have arisen subsequent to the notice for the motion, may be considered without any other statement than that used on the motion for new trial.

Johnson v. Wells, Fargo & Co.

WAIVER OF WAIVER-TIME TO MAKE STATEMENT ON APPEAL. A failure to make a statement on appeal within twenty days after the entry of judgment is equivalent to a waiver of such statement; but such waiver may be itself waived; and a stipulation that the statement on new trial shall be also the statement on appeal, though made more than twenty days after judgment, is such a waiver. PRESUMPTION THAT JURIES FOLLOW INSTRUCTIONS. The presumption in all cases

of jury trials is that the jury apply the law as given by the Court, and upon such law and the evidence render their verdict; and no appellate Court can decide the effect of the one separate from the other.

BODILY SUFFERING AS SOURCE OF DAMAGE. Though it is difficult to conceive

how bodily pain and suffering can be estimated in dollars and cents, yet it is well settled that a recovery can be had for them as damages, in actions against passenger carriers for personal injuries occasioned by negligence.

PAIN OF MIND AS AN ELEMENT OF DAMAGE. In an action against a passenger carrier for personal injuries, occasioned by the breaking down of a stage coach, it is error to instruct the jury in estimating damages to take into consideration plaintiff's "pain of mind," as distinct from his bodily suffering. COMPENSATORY DISTINCT FROM PUNITIVE DAMAGES. In actions against passenger carriers for personal injuries occasioned by their negligence, the rule of damages is based upon the idea of compensation and not of punishment. DAMAGES AGAINST PASSENGER CARRIERS FOR NEGLIGENCE STRICTLY COMPENSATORY. The only damages that can be recovered in an action against a passenger carrier for personal injuries occasioned by negligence are strictly compensatory, including damages for bodily pain, and so much only of mental suffering as may be indivisibly connected therewith.

"CHARACTER " OF INJURED PERSON NOT INVOLVED IN SUIT FOR NEGLIGENCE. In

an action against a passenger carrier for personal injuries caused by negligence, the character of plaintiff cannot be considered as an element of calculation, in estimating the amount of damages; and an instruction submitting it to the jury for such purpose is error.

APPEAL from the District Court of the Eighth Judicial District, White Pine County.

Plaintiff was a passenger in one of defendant's coaches running from Elko to Hamilton, in March, 1869. On the way and near Jacob's Wells, it was discovered that one of the axles had heated; and upon the wheel being taken off, to pour water upon the spindle, the driver remarked that he was afraid the axle would "weld" before the coach could reach Newark, eleven miles distant, where he could change for another coach. Upon arriving at Newark it appeared that the other coach needed some slight repairs, whereupon the driver determined to drive on the coach with the heated axle, and made some remark about going through ahead of Lew. Wines',

Johnson v. Wells, Fargo & Co.

which had just then arrived at Newark. After some further attempts to cool the axle, the coach started forward again, and soon afterwards the axle snapped and the coach toppled over, throwing a large iron casting upon plaintiff's knee, and occasioning bruises and injuries to his head, hip and spine. After the break, the driver returned to Newark, and in the course of an hour the other coach was repaired, with which the passengers were carried to Hamilton.

Garber & Thornton and A. C. Ellis, for Appellant.

I. A man's character is not directly or remotely involved, nor should it in anywise be taken into consideration by a jury in making up a verdict upon a question of damages from injury to the person. A man with a bad character can suffer as much bodily pain from an injury to the person, as a man with a good character. But here the jury were told that they might speculate as to the probabilities of plaintiff's enjoying a lucrative business, or finding employment in consequence of his character as a business man, and of the surroundings at the time of the injury or thereafter: this was error. (31 Mo. 117; 5 Minn. 440; 11 Ind. 552.)

II. The jury were told that they should consider, in connection with the character of plaintiff, his pain of mind, the anguish he might have suffered in consequence of some disappointment in business, or some failure to realize a hope he had cherished: this was error. (2 Greenleaf Ev. 267 and cases cited.)

Thomas P. Hawley, for Respondent.

I. The error complained of should not be considered, because no statement on appeal was filed or served within twenty days after the motion for new trial was overruled. It is true, it was stipulated that the statement on motion for new trial might be used and referred to with like effect as if it had been filed and settled as a statement on appeal; but it could not take effect as a statement on appeal until the signing and filing of the stipulation; and this not being within the time limited by the statute, the statement on appeal should not be considered by the appellate Court. (Ryan v. Dougherty, 30 Cal. 221; Harper v. Miner, 27 Cal. 114.)

Johnson v. Wells, Fargo & Co.

II. Damages sustained from pain of mind are not special in their character. The plaintiff is entitled to recover all damages arising from the attendant circumstances of the principal transaction, and the natural results flowing therefrom. Mental anguish necessarily follows from bodily sufferings, and is the natural result of an injury to the person. It is a part and parcel of the actual injury, for which the party injured is entitled to compensation in damages. It is damage just as necessarily arising from the injury as loss of time or expenditure of money. (Fairchild v. Cal. Stage Co., 13 Cal. 601; Ransom v. N. Y. & Erie R. R. Co., 15 N. Y. 416; Morse v. Auburn & S. R. R. Co., 10 Barb. 623; Curtis v. Rochester & S. R. R. Co., 10 Barb. 291; 18 N. Y. 542; Williams v. Vanderbilt, 28 N. Y. 224; Canning v. Inhabitants, etc., 1 Cush. 452.)*

III. The word "character," as used in the instruction, applied to physical health, and was there used to distinguish the difference as to plaintiff's character before and after the injury. The jury was simply instructed to consider what character of a man plaintiff was before the injury, as to being sound and strong, able to do and perform manual labor without mental pain or bodily sufferings, and what character of a man he was after the injury, as to being crippled, unable to pursue his usual avocation, and deprived of the use of his limbs. Such were the character and business of the plaintiff that the jury were to "take into consideration." No other construction could reasonably be given to the meaning of the word "character" under all the facts and circumstances; no evidence was offered in reference to his moral or intellectual character, or in regard to his skill or learning in any branch of business. And if the word had been used in that sense, it would have no bearing on the case, and could not possibly have misled the jury, or had any effect whatever beyond their verdict.

IV. A verdict will not be set aside because of misdirection in any immaterial matter, or where a charge has, though erroneous, no bearing on the issues. (Honer v. Wood, 16 Barb. 391; Alston v. Jones, 17 Barb. 276; Garden v. Clark, 17 Barb. 538; Wood v. Gibbs, 35 Miss. 559; Eyser v. Weissjaba, 2 Clarke, 463; Western Stage Co. v. Walker, 2 Clarke, 504.)

Johnson v. Wells, Fargo & Co.

V. The case was fairly submitted to the jury, and tried upon its merits. In such a case, it would amount to a denial of justice to grant a new trial upon the ground that the Court gave an erroneous instruction upon a point wholly immaterial, having no relevancy or bearing in the case, and in regard to which no testimony was offered.

By the Court, WHITMAN, J. :

The respondent objects to a consideration of this appeal because it is said there is no statement on appeal.

There is a statement on motion for new trial. The appeal is taken from an order denying the motion, and from the judgment. In addition, there is a stipulation to this effect: “It is stipulated

in the above action that the statement on motion for new trial herein, as on file and settled, shall be also the statement on appeal, and may be used and referred to with like effect as if the same had been duly filed and settled as a statement on appeal herein."

This stipulation was not made until twenty-four days after the order denying the motion for new trial, and the form of objection to the consideration of the statement is, that "no statement on appeal was filed or served within twenty days after the motion for new trial was overruled," citing the statute as follows: "When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment or order, he shall within twenty days after the entry of such judgment or order prepare such statement." (Statutes of 1869, 248, Sec. 332.)

That the word order as used in the section quoted has no reference to an order made upon a motion for new trial, (except when a statement becomes necessary in order to present some matter properly to be reviewed upon an appeal from an order granting or refusing a new trial, which could not be included in the statement upon the motion therefor) is evident from another portion of the same statute reading thus: "The statement thus used (on motion for new trial) in connection with such pleadings, depositions, documentary evidence on file, testimony taken by a reporter, and minutes of the Court as are read or referred to on the hearing,