concurring.
I agree that under the evidence the verdict was not inadequate.
I also agree there was no reversible error in refusing appellants’ tendered instruction on damages. However, I do not premise that result on the absence of evidence that a pre-existing condition was aggravated by the collision. Such evidence was present although it was produced by the defendant.
It is true that aggravation of a pre-exist-ing condition was not the theory of plaintiff’s complaint nor an issue posed in the pre-trial order. That, however, does not preclude its application. The theory of the claim was negligence and, if established, plaintiff was entitled to recover for the damages naturally accruing therefrom. If those damages were “merely” aggravation of a pre-existing condition, then that was the extent to which plaintiff was entitled to recover.
The tendered instruction stated:
“In an action for personal injuries caused by the wrongful acts or omissions of others, the injured person is entitled to full compensation for all damages proximately resulting from the defendant’s acts even though her injuries may have been aggravated by reason of her pre-ex-isting physical condition; or were rendered more difficult to cure by reason of her age or existing state of health; or because of her age or existing state of health, the injuries were rendered more serious to her than they would have been had she been a younger person or in robust health.”
This language is confusing at best. More significantly, final instructions numbered 20, 21 and 22 which were given by the court properly and adequately defined the measure of damages. Thus, there was no error in refusing the tendered instruction.