CRAIG, J., Dissenting.
I dissent. To my mind the giving of the instruction which my associates consider of a prejudicially erroneous character is not a sufficient ground for reversal. It is doubtful whether or not the instruction in question is a correct statement of the law, but if it is conceded, without admitting the legal correctness of the concession, that the instruction was erroneous, there is nothing
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to indicate that the error prejudiced the appellant, and therefore the judgment should be sustained.
The verdict is general in its character. Evidence contained in the record conclusively supports a recovery for the plaintiff and respondent, based upon loss of former employment, as well as loss of salary under the contract. No evidence whatever was introduced to sustain the allegation of the complaint referred to by the instruction in question and having to do with the loss of opportunity to purchase an interest in the business. This in itself furnishes strong reason to believe that the jury based its verdict upon the former rather than the latter ground. Aside from this indication there is nothing upon which even an intelligent guess might be hazarded to say for which element of damages pleaded in the complaint the award was made. Under these circumstances a conclusion that the appellant was prejudiced must be predicated upon a presumption that the jury acted so unjustly as to return a substantial verdict against the defendant without the slightest proof that as to the ground upon which it was based he had done more than commit a technical wrong, for which the plaintiff had suffered no loss. Further, it would be necessary for us to presume that the jury disregarded the court’s instructions upon other phases of the case in which damages in an amount greater than the sum allowed were clearly proven. I apprehend that it is not the province or the practice of appellate courts to indulge in these presumptions, which at once reflect upon the integrity of juries and impugn their intelligence. Rather, I think the law as well as experience and reason require that contrary presumptions be recognized, and in the absence of proof be given the weight to which they are usually entitled. In the instant case we should therefore presume that the jury took into consideration the only grounds supported by any evidence upon which the plaintiff was entitled to recover, and that the jury based its verdict upon the only grounds for which a verdict could reasonably have been rendered for the plaintiff.
This procedure is supported by numerous decisions from every jurisdiction, so far as I have been able to ascertain, where the issue here involved has been passed upon. The following are a few of the cases which might be cited:
Werner
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v.
Southern Pacific Co.,
44 Cal. App. 76 [185 Pac. 1016];
Flinn
v.
Crooks, 2
Cal. App. 335 [83 Pac. 812];
Blizzard
v.
Applegate,
77 Ind. 516;
Bourland
v.
Baker,
141 Ark. 280 [20 A. L. R. 525, 216 S. W. 707];
Valente
v. Porio, 98 Conn. 653 [119 Atl. 888].
In
Flinn
v.
Crooks, supra,
the complaint consisted of two counts; the first, one for the reasonable value of an attorney’s services, and the second was based upon an alleged express contract. No evidence was introduced in support of the second count, but a motion for nonsuit as to that count was erroneously denied. A general verdict for the plaintiff was returned. It was held that as there was no evidence introduced in support of the second count, and the evidence did justify a verdict upon the first count, it would be presumed for the sake of upholding the verdict and the judgment that they were based upon the first count.
Sanders
v.
Reister,
1 Dak. 151 [46 N. W. 685], involved an instruction that the jury consider
inter alia
the pecuniary loss, if any proven. Of this there was no evidence. It was said, “The record does not disclose that there was any evidence introduced even tending to prove pecuniary loss, and we are not to presume the jury found what was not in evidence.”
Werner
v.
Southern Pacific Co., supra,
applied the same rule to an instruction that the jury could find for the plaintiff if it was negligence for the railroad company to make a running switch, the running switch having been directed by plaintiff’s decedent. It was there said: “There might be sufficient ground for appellant’s exception to the verdict under the instructions covered by exception No. 31
if there was any evidence before the jury
tending to show that there was negligence in attempting the running switch on this occasion. . . . Under this state of the evidence it cannot be assumed that the jury predicated its verdict upon negligence in resorting to this mode of switching cars.” (Italics ours.)
In
Blizzard
v.
Applegate,
77 Ind. 516, suit was brought upon two counts, the first on a promissory note, and the second on account of the services as an attorney and for moneys expended. The supreme court of Indiana, by an itemized statement set out in its opinion, illustrated how the jury
could
have found its $600 verdict, saying: “The
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appellant assumes that the jury did not allow the appellee anything on the note, and earnestly insists that the evidence does not sustain the verdict on the second paragraph. The verdict was general; we are therefore unable to determine whether or not the jury included the amount apparently due upon the note in the verdict; but there was evidence upon which they could have found for the plaintiff upon the issues under the first paragraph of the complaint; and, if necessary to sustain the verdict, we must presume that they did so, the record showing nothing to the contrary.”
In
Bourland
v.
Baker, supra,
it was said: “The instruction is assailed because, according to appellant’s interpretation thereof, it submitted all the allegations of negligence set up in the complaint to the jury for consideration, whether supported by evidence or not. It is true evidence was not introduced in support of every allegation of negligence in the complaint. The trend of the evidence, however, limited the issues to whether the injury resulted from fast driving, failure to give a signal of warning, failure to keep a proper lookout, or whether due to appellee’s own negligence; and, in the absence of specific objections to the general terms in which the allegations of negligence were submitted, it will be presumed that the jury considered
only such grounds of negligence as were supported iy the
evidence(Italics supplied.)
But we need not rely upon the decisions of courts of this and other jurisdictions. In this state we have express legislative authority on the matter which appears to me to compel the affirmance of the judgment appealed from. Section 475 of the Code of Civil Procedure provides that: “No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect were prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable in such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that" error is prejudicial, or that injury was done if error is shown.”
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To the same effect in section 4% of acticle VI of our constitution.
It must be remembered that the verdict rendered was a general one. There is not the slightest suggestion of evidence in the record on appeal which would indicate that the jury awarded their verdict upon the cause of action for loss of opportunity to purchase an interest in the business. Nor is there any evidence to show that respondent was damaged one cent by reason of being deprived of his opportunity to purchase the one-third interest in the business. Under the authorities above cited, to justify a reversal appellant must not only show that an erroneous instruction has been given, but that the error committed was prejudicial, that by reason of such instruction the party appealing sustained and suffered substantial injury, and also that a different result would have been probable if such instruction had not been given. In the face of the fact that the verdict rendered was fully warranted by evidence sustaining the allegations of loss of other employment and of salary, and that there was none to support the claim of substantial damage by reason of appellant having been prevented from securing an interest in the business, can it be said that if error had not been committed a different verdict would have been rendered? I think not. And, lest an appellate court might consider, as was formerly done, that in the absence of proof either way, prejudice and damage is to be presumed from error, the legislature in enacting this section of the code has closed the door against entertaining such argument or applying that presumption.
It has been uniformly held that if a judgment or order is right upon any theory of law applicable to the case it must be sustained regardless of the consideration' which may have moved the trial court to its conclusion. The ruling may have been correct, but the reasoning or instruction "of the trial court erroneous. An appellate court cannot know the minds of the jury nor adjudge that they were guilty of perpetrating an injustice without evidence or reason therefor, merely because under an instruction given by the court it may have been possible for them to do so. In cases similar to that before us, where the jury has rendered a general verdict and there is satisfactory evidence to establish other elements of damage alleged in the com
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plaint, it has been held that it will be presumed that the jury rendered its verdict in favor of the plaintiff for the injuries which the evidence sustained, and not to compensate for that which was alleged but not proven.
From these cases, as well as the code and constitution, the conclusion is inevitable that if there was error it was not of such a character as to require or allow a reversal.