A. H. COPPINGER and R. L. WALKER, Appellants,
SIMONA BRODERICK and HARRY BRODERICK, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. Charles H. Young and Mr. Isaac Barth, for Appellants.
Messrs. Cox, Moore & DeCamp, for Appellees.
[37 Ariz. 474] ROSS, J.
This is an appeal by A. H. Coppinger and R. L. Walker from a verdict and judgment against them in the sum of $4,000 in favor of Simona and Harry Broderick (wife and husband) for personal injuries to Simona alleged to have been caused by appellants driving an automobile truck into and against said Simona at the intersection of Henshaw Road and Third Street in Phoenix.
[37 Ariz. 475] Complaint is made of the admission of evidence, of an instruction on the measure of damages, and of the size of the verdict and judgment.
The evidence which appellants say should not have been admitted was not objected
to by them. The introduction of evidence is governed by well-established rules. Its admissibility, when questioned, is determined by the court. The court's ruling may be made the basis of an assignment of error. In the absence of any objection and ruling, there is no foundation for error. But the evidence of which complaint is made for the first time was in fact competent and relevant. It consisted of proof of Simona's age and life expectancy. The injuries sustained were of a permanent character, and in such case the age and life expectancy of the injured person are always competent, and relevant on the measure of damages. 17 C.J. 869, § 181, and 1036, § 331.
Evidence of future pain and suffering, it is said, was given, and this is assigned as error because there is no averment of future suffering. The place in the transcript where such evidence may be found is not given by appellants, nor do they show that, if such evidence was introduced, it was objected to or ruled upon by the court.
Complaint is made of the following instruction:
"And if you should arrive, or find, rather from a preponderance of the evidence that the defendant was guilty of negligence, and that his negligence was the proximate cause of the injury complained of, then it will be your duty to go further and assess the damages in this case and give to the plaintiff what will reasonably compensate her as disclosed by the evidence for the injuries sustained; and in arriving at that you will take into consideration the character of the injuries sustained by plaintiff, the pain and suffering which she has endured as a result thereof, if any, and the pain and suffering which she in all [37 Ariz. 476] probability may endure in the future, if any, taking into consideration her age and life expectancy."
It is said that "damages for pain and suffering which appellee in all probability might endure in the future" are outside the issues, since the complaint contains no allegation of such damages, and are, also, "too remote and speculative." Physical pain and suffering in consequence of a wrong occasioning an injury are proper elements of damage. No rule has been devised for measuring and compensating in money the injured party for such consequences. Concededly, the damages on that account should be fair and reasonable, free from sentimental or fanciful standards, and based upon the facts disclosed, such as the length of the suffering, the nature of the injuries, the age, health, habits and pursuit of the injured party; they must have a basis in the evidence actually submitted; they cannot be arrived at by conjecture or speculation. 17 C.J. 924, § 221. The apprehended future consequences of an injury, in other words, should be reasonably certain. They are seldom or never suspectible to anything like absolute accuracy of calculation. From their very nature, they must be measured by a rule more or less flexible. The injuries may be so serious as to indicate that the person injured will suffer pain the rest of his life, and yet the restorative processes of nature may in an unexpectedly short time heal the wounds. The injuries, on the contrary, may seem trivial, but progressively undermine the constitution of the injured person.
If there is submitted sufficient evidence to at all justify an instruction on future pain and suffering, the question of what shall be allowed on that account must be determined by the jury, not on certainties but probabilities. The rule, generally stated, is that the consequent suffering and pain must be reasonably [37 Ariz. 477] certain. 8 R.C.L. 544, § 94. But, we confess, when the peculiar duty imposed upon the jury is taken into account, reasonable certainty of pain and suffering in the future connotes to us about the same thing as "pain and suffering which she in all probability may endure in the future." Webster defines "probability" as "quality or state of being probable; appearance of reality or truth; ...