Respondent sued, among other items of damages, for loss of earning capacity resulting from his injuries. Upon the trial, matters occurred which caused him voluntarily to strike all such allegations from his complaint and to withdraw from the jury all claims for loss of earning capacity, both past and future. *Page 119
Certainly, to the ordinary man, the pursuit of a gainful occupation is the chief of all uses of a healthy mind and body. That being so, the instruction set out in the majority opinion was in my judgment clearly erroneous, as it permitted the jury to allow damages for the loss of earning capacity notwithstanding respondent had abandoned that item.
Not only that, but the injuries (except very minor ones) were established only by opinion evidence based entirely upon subjective symptoms. Traumatic neurosis, based solely upon subjective symptoms, is far too intangible and uncertain, both as to extent and duration, to justify a ten thousand dollar recovery.
I therefore dissent.