Johnson v. Wells, Fargo & Co.

than compensation to the plaintiff, a rule unknown to the law in actions of the kind considered; and the authorities cited do not sustain the position taken. This is evident on reading the quotation as to the citations in the English case and in those from New York. In Laing v. Colder, the dictum of Judge Bell is not included in the rule he lays down, which is correct; and the natural conclusion is that he did not mean to specify mental pain disconnected with physical suffering as a separate element of damage.

The remark made by Judge Woodward in 7 Casey was, that "it was proper for the jury to understand that the sufferings endured by the boy, and the disfiguration of his form, and whatever was merely personal to him, should not enter into the estimate of the father's damages, because for this the son would have a right of action." There is no doubt about the proposition, but how it serves to sustain the idea that mental suffering may be distinctively allowed for, is difficult to see.

The rule as laid down in Laing v. Colder, 8 Barr., is substantially the one universally followed. Probably the desire to afford full relief to plaintiff has occasioned the somewhat lax expressions which may be noticed in the cases quoted as to mental suffering. The desire is laudable, but the means suggested for its accomplishment are entirely too speculative. It is difficult to estimate by any pecuniary standard bodily pain; how much more so to weigh the sufferings of the mind, as distinct therefrom.

In the case of Theobald v. Railway Passengers Assurance Company, referred to in Pennslyvania R. R. Co. v. Allen, just quoted, Ch. B. Pollock says: "A jury most certainly have a right to give compensation for bodily suffering unintentionally inflicted; but when I was at the bar I never made a claim in respect of it, for I look on it, not so much as a means of compensating the injured person, as of damaging the opposite party."

Though unacknowledged, it is not improbable that some idea of punishment to defendants prompted the first allowance of damages for bodily suffering in cases of mere negligence, as it seems impossible to say as a bald proposition that such suffering can be compensated by money; but however the rule originated, it exists, and in these times, when traveling is so much a constituent part of

Johnson v. Wells, Fargo & Co.

living, it is perhaps practically well that it is so, for the pocket nerve is a very sensitive one, and prospect of heavy damages will undoubtedly do much to prevent carelessness on the part of passenger carriers. But evil must follow an attempt to introduce such a distinct element as that claimed in this case, which pertains so entirely to the sentimental, and opens the door to considerations absolutely imaginative and conjectural, dependent upon conditions and circumstances which seldom, if ever, could be brought within the proper province of a jury.

Such evil result has been produced, perhaps by this very cause in Pennsylvania, where the Legislature has enacted that no damages shall be recovered against railroad companies for personal injuries, except such as have been pecuniarily sustained, and then not to exceed three thousand dollars. Fancy damages and absurd and unjust legislation become not unnaturally correlative.

This is the first case arising in this State where it has become necessary to fix a rule of damages in actions for personal injury caused by negligence of a passenger carrier. It is well to start from the ancient landmark, and to remember that all damage to be recovered in such cases is strictly compensatory; that while it may be possible to compensate bodily pain, and so much of mental suffering as may be indivisibly connected therewith, (and this rather on authority than reason) yet that it is absolutely impossible to measure mental agony by money, and that no established rule authoritatively commands such futile attempt; and consequently it must be held that so much of the instruction given herein as allowed the jury to consider the plaintiff's pain of mind aside and distinct from his bodily suffering, was error.

As to the other portion of the instruction complained of, which directed the jury to take into consideration the plaintiff's "character," it is so entirely inapt that the word must have been inadvertently used. "The character of the parties is immaterial, except in actions for slander, seduction, or the like, when it is necessarily involved in the nature of the action." (2 Green's Ev., Sec. 269.)

As it is impossible to determine what weight these erroneous elements had in producing the sum of the verdict, it follows that it must fall, and the District Court should have granted a new trial.

Lyon County v. Washoe County.

Its order denying the same and the judgment herein are reversed, and the cause remanded.

By LEWIS, C. J. :

Upon the last point discussed by my brother Whitman, I concur in reversing the judgment of the Court below.

LYON COUNTY, RESPONDENT, v. WASHOE COUNTY, AP

PELLANT.

TRANSFER OF ACTION BY STIPULATION. Where a cause was transferred from one judicial district to another on a stipulation, which provided that if a trial should not be had in the new district by a certain time, the cause should be transferred back to the original district, and it was so transferred back: Held,

APPEAL from the District Court of the Second Judicial District, 'Ormsby County.

This was an action to have certain territory near the northeasterly corner of Storey County, claimed by Washoe County, declared to be a part of Lyon County and subject to its exclusive jurisdiction for judicial, election, taxation and other county purposes. The other cause referred to in the opinion of the Court is that of Storey County v. Washoe County. The mis-trials in Ormsby County resulted from disagreement of the juries. The bench was occupied by Judge Berry, of the Fifth Judicial District.

Joseph Kutz and Clarke & Wells, for Appellant.

W. H. Gates and Williams & Bixler, for Respondent.

By the Court, WHITMAN, J.:

This case with another was transferred from Humboldt County, Fifth Judicial District, to Ormsby County, Second Judicial District, under the terms of a general stipulation, on the twenty-ninth of July, 1869. It was brought on for trial twice in said Ormsby County, the last time on the tenth of January, 1870; both hearings resulting in a mis-trial. After the last, application was made upon the

Lyon County v. Washoe County.

stipulation and certain other matter for re-transfer of the two cases to Humboldt County, which motion was granted.

From the order so made this appeal is taken, and the whole question of error turns on the interpretation of the portion of the stipu lation as follows: "An order for such change (from Humboldt to Ormsby County) may be made on filing a stipulation to that effect with the clerk of the District Court, Fifth District, which stipulation it is hereby agreed shall be made and signed in due form. It is further stipulated, that in the event said trial does not take place on or before the first day of October next, another order shall be made changing the venue back to the Fifth District, Humboldt County, unless the time for continuance of the actions in the second district be extended by agreement and stipulation of the parties hereto." The trial did not take place on the day stated, and by verbal understanding the original time was extended until the eighteenth of the same month; and upon a mis-trial, then further extended until the tenth of January, 1870, when a hearing was had which resulted in the same manner.

It is claimed by appellant that the object and purpose of the stipulation was to secure a trial at a convenient time in Ormsby County, and that no trial has practically been had; the case, under the stipulation, remains for such trial in Ormsby County. Respondent answers that one object was to try the case in Ormsby County, but that this was guarded by the reservation that the case could at any time be taken back to Humboldt after the first day of October, unless continued in Ormsby County by agreement and stipulation, and that none such has been made.

This view would seem to be correct. The word "continuance" in the stipulation appears to be used in the sense of remaining or continuing. If so, then after the first day of October, the cause would remain or continue in Ormsby County, whether for the purpose of trial or otherwise, only by further agreement and stipulation. An agreement which was respected by the parties was made on two occasions for a temporary postponement for trial, which resulted as aforesaid; but no general agreement or stipulation for continuing the case in the Second District; and now none such exists, and in absence thereof, the order was made by the District Judge sending

Lyon County v. Washoe County.

the cases to Humboldt. Under the view taken, this order was correct.

It is therefore ordered that the order appealed from be, and the same is hereby, affirmed.

By JOHNSON, J., dissenting :

This case in the lower Court stands precisely in the condition that it would had the trial occurred on or before the first of October, 1869, seeing that the parties thereto consented that such trial should be postponed to a later day, and for reasons we know not, perhaps at the instance of, and for the convenience of, the moving party; yet, certainly the legal presumption is, that such postponement was not detrimental to either, nor for which cause, either party can here claim any advantage. Hence, neither party can upon motion be entitled to a transfer of the cause back to Humboldt County, simply because the case was not tried in Ormsby County on or before the first of October. The proceedings had in the case on the eighteenth of October, 1869, and yet later-the tenth of January, 1870-are by force of the agreement of the parties, in accordance with the terms of the stipulation, as fully performed as if these things had occurred on the preceding first of October. They had stipulated that a given day should be the limit of time when the trial should be had in Ormsby County, and the contracting parties thereafter agreed that the time should be extended, and consequently when the time originally appointed had by consent been passed over, time no longer could be considered in determining the relative jurisdiction of Ormsby and Humboldt Counties. Thereafter, in my judgment, the case could not be taken from Ormsby County except for statutory causes, none of which are

shown.

In support of these conclusions, I refer to the several stipulations of the parties as appear in the record as follows: "In the above entitled actions the parties by their counsel stipulate as follows:

I. That the venue of the two first above named actions shall be changed to the County of Ormsby, Second Judicial District, provided either Judge George G. Berry or Wm. H. Beatty will agree