The facts upon which this appeal is based are stated in the opinion of the district court of appeal for the first appellate district, division two, written by Mr. Justice Haven (28 Cal. App. Dec. 1005). We adopt that opinion, in part, as follows:

This brings us now to a óonsideration of instruction No. 20, which was given upon the court’s own motion and was in effect the modification of an instruction requested by the plaintiff. The question of the correctness and effect of this instruction presents one of the strongest points urged for a reversal. The instruction reads as follows: “The defense of contributory negligence on the part of the plaintiff is an affirmative defense, and unless it appear from the evidence on the part of the plaintiff, must be established by the defendant to your satisfaction by a preponderance of the evidence, and if in your minds the evidence is evenly balanced, the defense fails in that particular.” The portion of this instruction objected to by appellant is the phrase “to your satisfaction,” which, it is contended, made the instruction require a higher degree of proof than the law exacts. In commenting upon a similar instruction the appellate court of Indiana said: “The form of the expression used in this instruction is not to be commended, and has been expressly condemned by the supreme court of Illinois, Mitchell v. Hindman, 150 Ill. 538 , [ 37 N. E. 916 ]. In the ease just cited it appeared that an instruction which stated that plaintiff was ‘bound to prove to the satisfaction of the jury by a clear preponderance of the evidence, ’ etc., had been requested and refused by the trial court. It was held on appeal that the instruction was erroneous and that it was properly refused. The language used in the instruction under consideration is not identical with that condemned in the Illinois case to which we have referred, 'but it was sufficiently objectionable to have justified the trial court in refusing the instruction. An instruction may contain such an inaccurate statement of the law as would warrant the trial court in refusing to give it, and still the objection may not be so serious as to warrant a reversal of a judgment on that account. In this ease the trial court could have .very properly refused to give the instruction in question, and such a ruling would have been commendable, but, having given the instruction, this court is now required to determine whether the language employed, when considered in connection with the other instructions given, was such as would probably mislead the jury to the prejudice of appellant., This court has repeatedly decided that an instruction that in substance informs the jury that a party having the burden of proof as to a certain fact or issue must establish it to the satisfaction of the jury by a fair preponderance of the evidence is not reversible error, where the other instructions in the case clearly define what is meant by a preponderance of the evidence and distinctly advise them that a preponderance of the evidence will be sufficient to justify a finding in favor of the party having the burden. In such cases it is held that the words, ‘to the satisfaction of the jury,’ are equivalent to ‘find’ or ‘believe.’ Terre Haute etc. Co. v. Payne, 45 Ind. App. 132 , [ 89 N. E. 413 ]; Baltimore etc. R. Co. v. Walker, 41 Ind. App. 588 , [84 N. E'. 730]; Sams Automatic Car Co. v. League, 25 Colo. 129 , [ 54 Pac. 642 ] ; Callam v. Hanson, 86 Iowa, 420 , [ 53 N. W. 282 ]; Stewart v. Outhwaite, 141 Mo. 562 , [ 44 S. W. 326 ].” (Sherman v. Indianapolis Traction Co., 48 Ind. App. 623, 625 , [ 96 N. E. 473, 475 ].) It may well happen in some cases that an instruction in the form here given would necessarily be considered prejudicially misleading. This is especially apt to be true of an instruction regarding the burden of proving the defense of insanity in a criminal case where the other instructions concerning burden of proof are of course framed to impress upon the jury that guilt must be proved to a moral certainty and beyond a reasonable doubt. (People v. Miller, 171 Cal. 649 , [ 154 Pac. 468 ]; People v. Preciado, 31 Cal. App. 519 , [ 160 Pac. 1090 ].) [8] We have carefully. considered the instructions given in this case in so far as they bear upon the question of the burden of proof, ánd we are of the opinion that the language employed in the instruction under consideration was not such as would be likely to mislead the jury to the prejudice of appellant.

Error is also claimed in the ruling of the court sustaining plaintiff’s objections to various questions propounded to a medical witness, the purpose of which ivas to show that the plaintiff had not received proper treatment. Improper treatment, if proved, would be no defense if ordinary care had been used by plaintiff in choosing a doctor. The evidence excluded should, therefore, have been received only in event there was evidence in the ease from which the jury might reasonably have found that the plaintiff was negligent in her choice of a physician. The evidence in this behalf is to the effect that the accident occurred at about 7 o’clock in the evening in a city wherein plaintiff and her daughter were strangers. They had but one friend in this city, a lady who had been a nurse and was at the time the house mother for a club of girls. Plaintiff’s daughter asked this lady if she knew anything about the physician who was engaged to treat plaintiff, and the lady said, “Yes, he has doctored in my home, and some of those girls have been sick and we have had him. I think he is all right.” We have discovered no evidence tending to show that any information of this physician’s lack of skill was brought to the knowledge of plaintiff prior to the employment or that she continued with him after being informed of any lack of skill or failure to give proper treatment. [9] We are, therefore, of the opinion that the defendant failed to lay a sufficient foundation for the reception of evidence of improper treatment and that the objections to this evidence were properly sustained.

A rehearing of this cause, after decision by the court in Bank reversing the judgment, was granted solely for the purpose of reconsidering the single point upon which the judgment was ordered reversed, namely, the prejudicial nature of the admission in evidence of statements to the plaintiff by certain physicians as to the possibility of the permanency of the plaintiff’s injuries. Upon that point, in the light of the petition for a rehearing and a further perusal of the record, we now have this to say:

[10] Unquestionably the physical and mental condition „of plaintiff resulting from the accident was material, and mental suffering occasioned 'by any reasonable apprehension of future disability or deformity resulting naturally and proximately from her injury was a proper element to be considered by the jury in assessing the damages. ('Sedgwick on Damages, 9th ed., sec. 44, and cases cited.) The disability apprehended was one arising from the blow occasioned by defendant’s car and cannot be considered in any sense remote. [11] It follows that plaintiff had a right to testify as to her belief at the time of the trial that she would be a permanent invalid. It is insisted, however, that the court erred in allowing plaintiff, as it did, to state over objection that various physicians with whom she had talked concerning her injury had informed her that “in all possibility” she would never recover the use of her limb. Even if it be conceded that the advice of the physicians regularly retained in the case is a natural result of an injury to the person, plaintiff failed to show that the physicians expressing the opinion in question had been regularly retained in a professional capacity. The statements, therefore, can at most be considered as purely casual and not connected with defendant’s tortious act by an unbroken chain of causation. If, therefore, as we thought upon our original consideration of this case, plaintiff’s mental suffering is to be considered as occasioned by these statements which 'bore no legal relation to the injury, the admission of the testimony was not only error but prejudicial error as well. [12] While we are still of the opinion that the admission of the testimony was erroneous, we are now satisfied that the error was not prejudicial. The record shows that the jury was instructed to consider the objectionable statements solely for the purpose of determining how plaintiff felt about her condition at the time of the trial and its effect upon her mind. If, therefore, independent circumstances naturally and proximately resulting from plaintiff’s injury were made to appear at the trial which, standing alone and regardless of the opinion of the physicians, were sufficient to compel the conclusion in the minds of the jury that the plaintiff must have been possessed" of a present fear of permanent injury, it cannot be said that the admission of the objectionable testimony resulted in a miscarriage of justice. It did in fact appear that for two months immediately after the accident plaintiff underwent' treatment in a sanitarium, making no recovery at that time. It further appeared that subsequent treatment under the supervision of other physicians was equally unsuccessful, and that a year after the accident the fractured bone, had not yet healed—plaintiff being at that time well over seventy; years of age. It also appeared that at the trial of the case the physicians testified in the presence and hearing of the plaintiff that there was no chance of mending the bone save possibly after a long and tedious course of treatment. Furthermore, the plaintiff appeared in person in the presence of the jury, unable to walk unassisted, with her limb hanging helpless. These circumstances, we take it, were sufficient in and of themselves to have impressed the jury with the fact that the plaintiff must have been irresistibly impelled to believe that she was, and would be, permanently crippled. Consequently the objectionable statements could not have been considered the controlling, or even a materially contributing, cause of the belief expressed by the plaintiff at the time of the trial that she would never recover the use of her limb. Since it was only in that connection that the jury was allowed to consider the statements, it follows that the admission of the testimony objected to and complained of, while error, was harmless error.

The judgment is affirmed.

Lawlor, J., Olney, J., Wilbur, J., Angellotti, C. J., Shaw, J., and Kerrigan, J., pro tern., concurred.

Rehearing denied.

All the Justices concurred.