¶1dissenting:
¶2In the case of Jones v. Berry, 130 W. Va. 189, 45 S. E. 2d.1, this Court held:
“In the trial of an action involving a personal injury, where there is no evidence tending to show that, as a result of such injury, the injured person would probably be caused to undergo future physical and mental suffering, the giving of an instruction by the trial court, at the instance of the injured party, the plaintiff in the action, telling the jury that it is at liberty to consider the physical and mental sufferings to which he had been subjected ‘and will be subjected by reason of such injuries,’ is error.”
¶3This plainly held that an instruction permitting a jury to award damages for future suffering must be based on evidence that such suffering would probably continue beyond the date of the verdict. Instruction No. 1 in this case does not in plain language depart from such principle because it uses the words “supported by evidence”. My dissent in this case is based in part on the belief that it was improper to give such an instruction because the evidence in the case does not warrant an instruction permitting the jury to award damages for future pain and suffering. The mere mention of such pain and suffering furnished the jury with the opportunity to allow therefor, which probably accounts for the amount of the verdict returned. As I read the record in this case, there is no showing whatever that the plaintiff will endure *738future pain and suffering. There is some evidence in the case that she has had headaches, but the medical testimony is that they do not result from her injury. The evidence shows that there has been a completé recovery from all injuries sustained, although some scars and disfigurement will remain, for which she is entitled to recover. The instruction which covered bodily pain and suffering endured by her before trial also covered disfigurement to the person, and injury to health that had occurred or must necessarily occur as a result of such injury. There is, as I say, no evidence that she will suffer bodily pain, and Jones v. Berry, supra,expressly held that where there was no evidence of probable future physical and mental suffering such an instruction ought not be given. I think we ought to be consistent in these cases, and I think the present decision is a plain departure from the rule laid down in Jones v. Berry, supra.
¶4Nor do I agree with the holding of the Court that there was no specific objection to Instruction No. 5. If that instruction had any purpose whatever it was to define the measure of damages. The defendants objected to the instruction that: “it does not properly state the true measure of damages in the case. The instruction is not supported by the evidence, and contains elements of damages that are not supported by the evidence which. would be improper for the jury to base a verdict on.” If that does not specifically state an objection to the instruction, I do not know what language could be used to make the objection more specific. It first states that the instruction did not state the true measure of damages; then states that it is not supported by the evidence; and then states that it contains elements of damages that are not supported by the evidence, and which would be improper for the jury to base a verdict on. Certainly it must be admitted that it would not be proper to base a verdict in whole or in part upon future sufferings, when the evidence did not show such future suffering would probably occur.
¶5For these reasons, I dissent.