(specially concurring).
I concur in the result only. I think there was error in giving the contributory negligence instruction, but I consider it harmless:
“[A] judgment will not be reversed by reason of an erroneous instruction, unless upon a consideration of the entire case, including the evidence, it shall appear that such error has resulted in a miscarriage of justice. The usual consequence is that there will be no cause for reversal unless the evidence indicates that without such error in the instructions the verdict probably would have been different from the verdict actually returned by the jury.” Shuey v. Asbury, 5 Cal.2d 712, 55 P.2d 1160 (1936). Accord, Commonwealth Life Insurance Company v. Gay, 365 P.2d 149 (Okl.1961).
Although the negligence of the defendant in this case is admitted, the jury did not have to find the plaintiffs contributorily negligent to bring in a verdict for the defendant. There was evidence that the chiropractor who treated both plaintiffs had' an interest in the case by virtue of an assignment made to him by the plaintiffs on the first day they went to him, giving him the right to the proceeds of any suit brought as a result of their injuries. The defendant’s expert witness, Dr. Schultz, an orthopedic surgeon, testified that he could find no evidence of injury when he examined the plaintiffs fourteen months after the accident and that neither of them had any residual (permanent) injuries. He conceded that each of the plaintiffs might have had some degree of whiplash injury, but he said that he had only their subjective complaints as evidence that any such injuries had taken place. Both plaintiffs were still being treated by the chiropractor, Dr. James Lehmann, at the time of trial, about 20 months after the accident (Tarin had been in two further auto accidents since the one complained of here), and Dr. Schultz characterized Romero’s treatment as “over treatment.” Since there was a conflict in the evidence as to the degree of injury of the plaintiffs and since there was evidence that much of Dr. Lehmann’s treatment may have been unnecessary and that Dr. Lehmann had a personal interest in prolonging the treatment, the jury had ample ground for deciding that the plaintiffs had suffered no compensable injuries as a result of the collision. It does not appear, therefore, that the inclusion of an erroneous instruction as to the contributory negligence of a passenger has resulted in a miscarriage of justice. The error is harmless and does not require reversal.
As to the plaintiffs’ claims of error with regard to improper closing arguments, failure to give a cautionary instruction relating to closing argument, and duplicate instructions, I concur in Judge Lopez’ opinion.