Page:North Dakota Reports (vol. 3).pdf/318

 he may have suffered, according to its degree, and the bodily injury, taking into account the loss of time, the effects of the injury on plaintiff's health, its effects on his mental powers, its effect on his bodily powers, upon his capacity for labor, the pursuit of an occupation, and the earning of money.” Exceptions to this instruction were saved, and it is urged that it assumes the existence of the facts therein stated, instead of leaving them to be determined by the jury. This is hypercritical. The court had already instructed the jury as to what facts they must find to exist before they could return a verdict for plaintiff. The court then said: “If you find for plaintiff he is entitled,” etc., which was exactly equivalent to saying, “if you find the facts to exist as hereinbefore stated, plaintiff is entitled,” etc. The instruction assumed nothing.

It is next urged that there is no evidence in the case tending to show that plaintiff's capacity to earn money was in any manner impaired by the injury he received. We think otherwise. The testimony, as a whole, clearly tends to establish that plaintiff's ability to earn money was actually impaired by the injury he received.

But the third objection urged against the instruction is fatal. There was no claim in the complaint or in the evidence that plaintiff's mental powers had been in any manner affected by the injury, yet the court directed the jury to take into account, in estimating plaintiff's damages, the effect of the injury on his “mental powers.” It is conceded that mental suffering is a proper element of damages, and that the impairment of mental faculties is also a proper element, when claimed and proven, but it is neither claimed nor proven in this case. This position is not controverted by plaintiff. His contention is that the instruction did no more than to direct the jury to take into account plaintiff's mental suffering. We cannot so construe this language. It would be idle to follow counsel in his metaphysical dissertion upon abstract mental qualities. This language was addressed to men of average business intelligence, and must be construed in its