The following opinion on rehearing was filed November 2, 1904. Judgment modified:
Ames, C.This is a motion for leave to argue orally a motion for a rehearing from a decision in this case reported ante, p. 16. The error complained of is so manifest that oral argument could neither obscure it nor render it more plain, and Avould therefore be useless. The sole ground of the reversal as to the Avife, Antje (token, is the incompetency of the testimony of the physicians Lester and Rich, but Ave failed to observe at the time of preparing the opinion that this testimony was not objected or excepted to. If that fact Avas called to our notice on the argument, it failed to arrest our attention, and we also overlooked a brief mention of it in the brief accompanying the motion for a rehearing. The rule that a party cannot complain in this court of the admission of testimony to Avhich he *23has not objected, and excepted is too well settled to require the citation of authorities in its support.
Action for Personal Injuries: Instruction. In an action for personal injuries it is error to give an instruction allowing the jury to assess damages for permanent injuries or lasting impairment of health, unless there is evidence showing, with reasonable certainty, that such permanent injuries or lasting impairment of health were in fact sustained 'by the plaintiff.It is recommended that the former decision of this court, in so far as it reverses the judgment of the district court against the wife, the plaintiff in error Antje Goken, be vacated and set aside, and that as to her the judgment of the last named court be affirmed.
Letton and Oldham, CO., concur. By the Court:For the reasons stated in the foregoing opinion, it is ordered that the former decision of this court, in so far as it reverses the judgment of the district court against the wife, the plaintiff in error Antje Goken, be vacated and set aside, and that as to her the judgment of the last named court be affirmed.
Judgment modified.