WESTERN UNION TEL. CO. v. MORRIS, 83 F. 992

TI1AYEK, Circuit Judge, after stating the case as above, delivered the opinion of the court. It is first assigned for error that there was no evidence tending to show that the surgical operation which the plaintiff underwent on December 29, 3895, was the proximate result of the mistake made by the defendant company in transmitting the telegram to Dr. Dawson on December 4, 1895, and that the trial court should have instructed the jury to that effect, as it was requested to do.

With reference to this contention, it is sufficient to say that while the relation of cause and effect between the two acts last aforesaid seems remote, and while the evidence to establish that the one act was the efficient cause of the other is far from being' clear and satisfactory, yet we are not able to say that there was no evidence warranting the submission of that issue to the jury. A careful examination of the testimony of Dr.

Dawson, one of the medical experts, shows, we think, that in the course of his examination he did express the opinion, in substance, that if he liad not been misled by the telegram of December 4, 1895, and had arrived and prescribed for the plaintiff on the morning of December 5, 1895,. instead of the evening of that day, he could have administered remedies which, in Ms judgment, would have prevented any suppuration from the affected parts or membranes, and thereby have rendered the subsequent surgical operation unnecessary.

This testimony was admitted without objection, — in fact, the opinion of the witness to the effect last stated was elicited on cross-examination; and the jury, rather than the court, were entitled to say what weight should be accorded to it. We think, therefore, that the trial court did not commit a reversible-error in leaving the jury to determine whether the defendant’s failure-to transmit the message properly was the proximate cause of the plaintiff’s being subsequently compelled to undergo the surgical operation in question.

It is further assigned for error, however, that the trial court erroneously instructed the jury that, in case they found for the plaintiff below, then it would be their duty, in assessing her damages, to-consider the probability of a permanent impairment of the plaintiff’s-health as a result of the surgical operation, and her ability to perform physical labor thereafter; also, the expense which she had incurred, if any, as the result of the delay in transmitting the message.

It is claimed on the part of the defendant that there was no evidence tending to show that the surgical operation permanently •impaired the plaintiff’s health, or lessened her ability to perform physical labor, or that the mistake made in transmitting the message of December 4th occasioned the plaintiff any expense.

The record supports the contention that the jury were instructed to the effect above stated, but there seems to be no testimony in the record which has a tendency to show that the surgical operation did permanently impair the plaintiff’s health, or that it affected her capacity to work in the usual way. On the contrary, the evidence has a strong tendency to prove that the removal, by the operation, of certain sexual organs, which had become permanently diseased, had the effect of restoring the plaintiff’s health, which could have been restored in no other way.

It cannot be said in justification of this part of the charge that the reference made to an impairment of the plaintiff’s health, and to a loss of her ability to work, meant no more than that an allowance ought to be made for the loss of the organs which had been removed, because in the same connection the court also instructed the jury that they should assess damages for the loss of said organs, and also for the pain and suffering which the plaintiff had endured as a result of the removal thereof.

It is obvious, therefore, that the charge authorized the jury, in addition to the damages last aforesaid, to assess other and additional damages for impaired health, and for a supposed loss of ability to labor. We find no evidence on which to base that part of the charge, and it may have influenced the jury in making up their verdict.

It is a well-established rule, in cases of this character, that where damages are claimed for loss of time incident to an injury, or for expenses incurred for medicine and medical treatment, or for a permanent impairment of health, or loss of capacity to labor, there must be some evidence before the jury tending to show damages of such a character; otherwise an instruction which authorizes a jury to assess such damages is misleading and erroneous, and sufficient cause for a reversal of the judgment, tinless it clearly appears that such instruction has in fact done no harm. Railroad Co. v. Patillo (Ga.) 24 S.

E. 958; Mammerberg v. Railway Co., 62 Mo. App. 563; Railway Co. v. Artusey (Tex. Civ. App.) 31 S. W. 319; Telegraph Co. v. Drake (Tex. Civ. App.) 29 S. W. 919; Railway Co. v. Rossing (Tex. Civ. App.) 26 S. W. 243; Watts v. Railroad Co. (W. Va.) 19 S. E. 521; Comaskey v. Railroad Co. (N. D.) 55 A. W. 732; Campbell v. Alston (Tex. Civ. App.) 23 S. W. 33; Culberson v. Railway Co., 50 Mo. App. 556; Cousins v. Railway Co., 96 Mich. 386, 56 A. W. 14.

In some (tases injuries are sustained which are of such a nature as will, in themselves, warrant an inference that they will permanently affect the injured person’s health, or lessen his or her capacity to labor; but in the present case we cannot say that the injuries inllieted by the surgical operation were of such a character that the jury were at liberty to infer therefrom that the health of the plaintiff would he permanently affected, or that her capacity to labor would be thereby impaired.

It is just as reasonable to suppose, in the absence of any evidence on the subject, that she sustained no loss in either of those respects. The result is that the instruction last referred to was erroneous, and, as it may have had 1 he effect of increasing (he damages, the judgment of the circuit court must be reversed, and the cause remanded for a new trial. It is so ordered.