Young v. . Levin

ScheNCK, J. The defendant’s eleventh exceptive assignment of error is to the following excerpt from the charge: “The court instructs you if the plaintiff is entitled to recover actual damages in this case, he would be entitled to recover such sum as you find from the evidence, and by its greater weight, represents actual or compensatory damages sustained by him in consequence of and as the proximate result- of defendant’s wrongful, unlawful conduct. In a case of this nature these damages are understood to embrace and include a fair and reasonable compensation for any physical injury, if plaintiff has sustained any such injury, a fair and reasonable compensation for mental and physical pain and suffering, if plaintiff has sustained any such; and doctors, hospital, and medical expenses, if the plaintiff has sustained any such, and at the time of the injuries complained of in the action being tried if the plaintiff was Suffering from a previous injury or a previous disease, and that injury or that disease was aggravated and *757 increased by tbe defendant’s wrongful conduct in tbe action being considered by tbe jury, tben tbe jury would bave tbe right to take into consideration sucb increased or aggravated condition, and allow a fair or reasonable compensation for tbat, . . .” Tbis assignment of error must be sustained, since there is neither allegation of nor evidence tending to prove tbat tbe plaintiff endured any mental pain or suffering, or sustained any expense of doctors or hospitals as tbe result of tbe alleged assault. Smith v. R. R., 126 N. C., 712, and cases there cited. Tbe only element of actual damages alleged is, “That in tbe condition aforesaid (suffering from psoriasis) tbe vicious attack made upon tbis plaintiff by tbe defendant resulted in severe, serious, and permanent injury, in tbat it greatly aggravated, accentuated, and accelerated plaintiff’s condition,” and tbe general allegation, “That by reason of tbe assault hereinbefore set forth, plaintiff’s health has been damaged as hereinbefore set out in tbe sum of at least $5,000.” Tbe only evidence of actual damage is tbe plaintiff’s testimony as follows: “This occurrence there in Mr. Levin’s office aggravated my condition. I don’t know bow to explain its effect on my nervous system. Fear and excitement will make it spread. I was much better in 1935, due to tbe treatments. Since tbis assault, I bave bad a very bard time to control tbe condition. I bave not been able to control it. My condition has gotten very much worse. It is very itching. You can see all these scars and eruptions. About eighty per cent of my body is involved by tbis diséase. At tbe time of tbis occurrence only about “thirty per cent of my body was involved. Since tbe time of tbis occurrence my nervous condition has been so bad tbat I bave found it bard to carry on my business and tbe treatment to my disease is not effective. By reason of tbat I bave been hindered or stopped in my work. I bave been required to expend money for treatment.” Tbe 'foregoing allegations and evidence do not sustain tbe charge tbat plaintiff could recover for mental suffering, or for expenses of doctors or hospitals. "Wliile, as was said in Worley v. Logging. Co., 157 N. C., 490, wherein it was held error to charge tbe jury that they could consider as an element of damage loss of mental powers of tbe plaintiff when there was no evidence of sucb loss, it may be doubtful tbat tbe verdict was affected thereby, we cannot say it was not, and under tbe authorities in tbis State tbe instruction was erroneous. For tbe error assigned there must be a New trial.