scar was of an objective nature, whereas plaintiff’s complaints of head, back, and shoulder pain were purely subjective
How later courts described this case
- scar was of an objective nature, whereas plaintiff’s complaints of head, back, and shoulder pain were purely subjective
- overruled in part, on other grounds, in Barretto v. Akau, 51 Haw. 383, 463 P.2d 917 (1969)
- overruled in part on other grounds, Barretto v. Akau, 51 Haw. 383, 393, 463 P.2d 917, 923 (1969)
- overruled in part, on other grounds, 51 Haw. 383 (1969)
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by Barretto v. Akau, 51 Haw. 383 (1969)
47 Haw. 408, 435 , 390 P.2d 740, 755 (1964) ("The use of mortality tables in personal injury actions is limited to injuries of a permanent character."), overruled on other grounds by Barretto v. Akau, 51 Haw. 383, 393 , 463 P.2d 917, 923
The opinion
CONCURRING OPINION OP
LEWIS, J.
I concur in the opinion of the court except the holding that Defendant’s Requested Instruction No. 25 was improperly refused. Requested Instruction No. 24 was all that defendant was entitled to. No. 25 was too definite, in that it would have instructed the jury, if of the view that plaintiff had not used reasonable diligence to care for her injuries, to limit the damages to “the amount of damages that would have been suffered if the injured person himself or herself had exercised the diligence required of him or her.” There was no evidence that would have enabled the jury to carry out the instruction.
The court has recognized that as to the scar such is the case. As to the neck and shoulder pain, evidence that further medical care would have alleviated plaintiff’s suffering, and if so within what period, is nonexistent.
Implicit in the court’s holding in Condron v. Harl, 46 Haw. 66 , 374 P.2d 613 , and in its adoption of the Botta *443 rule in this case, is the principle that the jury should not be instructed or addressed in terms of definitely computable damages when the subject matter does not lend itself to such definiteness, either inherently or because of lack of proof which could have been adduced. The present case is of the latter type. Cf., Stipp v. Karasawa, 318 S.W.2d 172 (Mo.).