To recover damages for the impairment of the mental faculties, plaintiff must both allege and prove such injury. There being no such allegation or proof in this case, the court's instruction that if the jury found for the plaintiff they should allow him damages for the effects of the injury on his mental powers—was clearly wrong. The rule laid down by the court was in-applicable to the facts proven, and was prejudical to defendant. Michigan Bank v. Eldred, 9 Wall. 544; Chicago v. Robbins, 2 Black. 418. Thompson on Charge to Jury §§ 62, 63; Willis v. Railroad Co, 17 A. and E. R. R. Cases, 542.
It will as a rule be regarded as error in the court to give to the jury instructions, which are unsupported by evidence in the case for the reason that they tend to mislead the jury, even though abstractly correct in principle and law. Insurance Co. v. Baring, 20 Wall. 158; Webster College v. Tyler, 35 Mo. 268; Achltree v. Carl, 23 Ia. 394; Beaver v. Taylor, 1 Wall. 644; Clark v. Dutcher, 9 Cowan 674; Cane v. People, 3 Neb. 357. See, also, Battles v. Tallman, 11 So. Rep. 247; Coal Creek, etc. v. Davis, 18 S. W. Rep. 387; Perot v. Cooper, 28 Pac. Rep. 391.
Taylor Crum, for respondent.
Respondent contends that “mental suffering” and “effects on mental powers,” mean practically the same thing. That damages may be recovered for pain of mind. Citing Farchild v. Cal. Stage Co. 13 Cal. 601; Railroad Co. v. Barron, 5 Wall. (U. S.) 90; Masters v. Warren, 27 Conn. 293; Penn. & O. Canal Co. v. Graham, 63 Penn. St. 290; Sherwood v. Ry. Co., 46 N. W. Rep. 773.
Bartholomew, C. J. This is a personal injury case, and involves but a single point. There was a verdict and judgment for the plaintiff. The court, in its general charge to the jury, used the following language: “If you find for the plaintiff, he is entitled to a verdict for the full amount of damages suffered by him on account of his injuries, not exceeding ten thousand dollars; and in considering the extent of his injuries you will take into account the extent of injury, of bodily pain and suffering which
