Cl o J. Grattan O f Bryan Imth Cl cmx.u (\ men \^> of (1 & CL\n \\.\janu UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY 39308 ESSENTIALS ~ of THE LAW OF DAMAGES BY RALPH STANLEY BAUER, A. M., J. D. CHICAGO CALLAGHAN AND COMPANY 1919 T COPYRIGHT 1919 BY CALLAGHAN & COMPANY TO THE MEMORY OP H j PREFACE The purpose of this book is to state clearly the rules of the law of Damages, to comment upon and illustrate the workings of the rules, and to present important re- cent developments in this field. An effort is made to culti- vate in the student an independent judgment as to the cor- rectness of statements of principle. For this purpose, comparisons of adverse holdings are made, and question- able holdings are questioned or criticized. It is not in- tended that this work contain any extended treatment of the law of tort and contract. Questions of liability are so interwoven with questions as to the measure of dam- ages that it is necessary to devote small portions of the book to treatment of the primary question of the de- fendant's liability, as is done in all books on this subject. In determining the amount of space to be given to each portion of the general subject, regard has been had to the relative importance of the parts and to their complexity and difficulty. The citations of cases and quotations from them and other authorities have been selected from a large mass of material gathered from almost every possible source during the years in which the writer has written articles upon and taught this subject. Many of the cases quoted, cited, or used as illustrations, are leading cases, and to these have been added such other cases as seem valuable for purposes of instruction. In the selection of cases for illustrative purposes, the element of human interest has never been lost sisrht of; for the student must be inter- ested while instructed. A considerable number of the vi PREFACE cases referred to are very recent, bringing the book well to date. For the convenience of the student in any kind of law school, as well as for practitioners with limited library facilities, the case references are given to all series of reports. The book is planned with a view to the needs of two types of students : first, the student in a law school using the text book method ; second, the student in a law school pursuing the case method. The case illustrations and the footnotes abound in quotations from decisions, giving the student in a text book school an advantage usually only that of the student in a case school, the advantage of seeing the manner in which a court has actually expressed itself in regard to the principle being studied and the manner in which a court applies the principle to facts. The writer, having been both a student and a teacher of this subject by the case method, feels that the case student who has no text book whatever is handicapped, unless he be directed by a very unusual teacher and have a phe- nomenal ability to take notes of lectures. The student's work is likely to fail to constitute for him an organic whole at the termination of his course, if he has been taught by means of cases and lectures only. Such a book as this, placed in his hands for independent use outside of class hours, should present a summary such as will aid him in grasping the relation of principle to principle and of case to case and of principle to case. Among the cases summarized in illustrations, cited in support of the text, or quoted in text or footnotes, are a great many of the cases found in the principal case books. It is believed also that this book will constitute as sat- isfactory a help to the practitioner as will any one-volume work. The writer wishes gratefully to acknowledge the assist- ance of his former colleague, Professor H. W. Arant, of Emory University, former chairman of the editorial board of the Yale Law Journal, who has examined the chapter PREFACE vii on Cause and Result, and also the encouragement given him in this work by his former colleague, Dean B. A. Basco, of John B. Stetson University. In the manuscript as it stood until recently, no general treatment of the measure of damages for anticipatory breach of contract was attempted, only specific applications of the rules in- volved in such measure appearing in different parts of the work; and the writer thankfully acknowledges that the presence of the section on this subject, which, it is believed, will prove useful, is due to a suggestion by Dean Henry W. Ballantine, of the University of Illinois. In- valuable suggestions by Mr. James C. Cahill, managing editor of the publishers, and by Mr. Edward F. Donovan, formerly a student of the writer, formerly of the staff of the Standard Dictionary and the Literary Digest, and now with the Edward Thompson Company, have been gladly and gratefully followed. Further, the writer acknowledges the encouragement and very substantial aid given by his wife. The excellent libraries of three law schools, the Georgia State Library, and one private library have been used at various times in the preparation of this work. Prac- tically everything of any possible bearing on the subject has been available. Special acknowledgment is due the kindness of the Honorable J. C. Otts, of the bar of Spartanburg, South Carolina, who opened his large pri- vate library to the writer during the long sojourn of the latter near his city. B. S. B. Champaign, Illinois, July, 1919. TABLE OF CONTENTS Preface v PART I GENERAL PRINCIPLES CHAPTER PAGE I. Introduction 1 II. Damnum absque Injuria 4 III. Limitation of Recovery to Plaintiff's Interest 7 IV. Cause and Result 14 V. Avoidable Consequences 62 VI. Certainty of Proof 72 VII. Entire and Prospective Damages 82 VIII. Excessive and Inadequate Damages 89 IX. Liquidated Damages and Penalties 97 X. Nominal Damages Ill XI. Exemplary Damages 117 XII. Aggravation and Mitigation 136 XIII. Conflicts of Laws 140 XIV. General Principles of Pleading and Practice 144 PART II COMPENSATION AND ITS ELEMENTS XV. Compensation in General 147 XVI. Loss of Time, Wages, and Earning Power. . . . 150 XVII. Property 155 XVIII. Expenses 156 XIX. Profits and Bargains 160 XX. Physical Pain 167 XXI. Mental Suffering 169 XXII. Inconvenience 185 ix x TABLE OP CONTENTS CHAPTER PAGE XXIII. Reputation 187 XXIV. Loss of Services 189 XXV. Expenses of Litigation 191 XXVI. Interest 195 PART III. DAMAGES IN CONTRACT ACTIONS AND PARTICULAR CLASSES THEREOF XXVII. Contracts in General 199 XXVIII. Contracts Relating to Real Estate 213 XXIX. Sales and Contracts to Sell Personalty 222 XXX. Contracts to Pay or Lend Money 233 XXXI. Contracts for Work, Labor and Services .... 236 XXXII. Insurance 246 XXXIII. Indemnity 253 XXXIV. Agency 256 XXXV. Partnership 261 XXXVI. Carriers 264 XXXVII. Telegraph and Telephone Companies 274 XXXVIII. Breach of Promise to Marry. 282 PART IV DAMAGES IN PARTICULAR CLASSES OF TORT ACTIONS XXXIX. Negligent Torts 307 XL. Tortious Damage to Realty 309 XLI. Tortious Damages Pertaining to Personalty. . 329 XLII. Nuisance 342 XLIII. Battery and Other Personal Injuries 347 XLIV. Assault 363 XLV. Slander and Libel 365 XLVI. Malicious Prosecution 378 XL VII. False Imprisonment 385 XLVIII. Fraud and Deceit 388 XLIX. Seduction 393 L. Criminal Conversation 400 LI. Enticement of Spouse and Alienation of Af- fections . 406 TABLE OF CONTENTS xi CHAPTER PAGE LII. Interference with the Right of Privacy 411 LIII. Death by Wrongful Act 414 PART V. STATUTORY PROCEEDINGS FOR THE CONDEMNATION OF PROPERTY LIV. Eminent Domain 427 PART VI MODERN LEGISLATION RELATING TO WORKERS INJURED IN INDUSTRIES LV. Employers' Liability and Workmen's Com- pensation 435 LAW OF DAMAGES PART I GENERAL PRINCIPLES CHAPTEE I INTRODUCTION 1. "Damage" and "Damages." Damage is loss or harm. Damages, the plural of damage, is, rather unfor- tunately, used in two senses : first, as the mere plural of damage; and second, as meaning compensation claimed or awarded in a judicial proceeding for damage or for the invasion of a legal right. 1 In the study of this sub- ject, the use of the word " damages" in the first of these two senses should, as far as possible, be avoided, in order to obviate difficulties arising from ambiguity of expres- sion. Damages may be grounded either in a legal injury from which no damage has resulted, in which case they are known as nominal damages and amount to only a nominal sum such as six cents ; or they may be grounded in damage resulting from such a legal injury or in damage resulting from what becomes a legal injury only when 1 Damages, a sum of money injury. It is a word easy to define, claimed or adjudged in compensa- but often exceedingly difficult of tion for loss or injury. Oxford application." Jemo v. Tourist Ho- Dictionary. tel Co., (1909) 55 Wash. 595, 104 " 'Damages,' briefly denned, Pac. 820, 19 Ann. Cas. 1199. means compensation for the legal 1 Bauer Dam. 1 2 LAW OF DAMAGES accompanied by damage. A trespasses on B's land, doing no harm. B can recover nominal damages in vin- dication of his legal right. A trespasses upon B 's land, destroying B 's trees. B can recover compensatory dam- ages for his loss. A so conducts his fertilizer works as to do serious damage to B in the occupation and enjoy- ment of his home, odors and gases from A's works invading B's property. B can recover compensatory damages for his loss. In the latter case, no right of action would have accrued to B if he had not been dam- aged by the acts of A, for a nuisance gives no right of action if not resulting in damage to the plaintiff. Like- wise, negligence ripens into an actionable injury only when resulting in damage. The great outstanding rules of the law of damages, to be discussed at length hereafter, are : first, that, in order to constitute a recoverable element of damage, a loss or injury must be a proximate result of the defend- ant's wrong;" and second, that the nature of the plaintiff's damage and its proximate connection with the def end- ant 's wrong, must be shown with a reasonable degree of certainty. Some elements of loss for which damages are assessed are pecuniary, as in the case of a deprivation of money or a thing having money value. Other elements, such as physical and mental suffering, are non-pecuniary. As will be observed in subsequent portions of this work, the court today exercises considerable control over the amount of damages assessed, setting aside a verdict for a sum so large as to evince passion and prejudice on the part of the jury. Such a control, even today, it is univer- sally admitted, should be exercised with extreme caution. There is, however, a historical reason why the finding of a jury as to damages was once more binding upon the court than it now is. In the days of the early common law, the jury was composed of men who were supposed to know the facts in the case. Jurors were witnesses. INTRODUCTION 3 Today, as is well known, the situation is altogether dif- ferent. In contract, and as to pecuniary elements of dam- age in tort, the court can, and does, exercise rather a close control over the amount of damages; but, as to non-pecuniary elements of damage in torts, the jury may exercise a discretion of considerable breadth, for it is, as to such elements, exceedingly difficult, in most cases, to say that a verdict is excessive or inadequate, and it is altogether impossible to lay down practically complete general rules as in contract. 2. Money Standard by Which Damages Are Measured. Damages are measured in such money as is legal tender in the country at the time of the rendition of the verdict. A verdict assessing damages at a certain amount "in United States gold coin" is bad, unless it be in an action based upon an express or implied promise to pay in such coin. It is improper that the verdict should thus single out one of the kinds of legal tender, in the absence of a stipulation to this effect by the parties. 2 2 Finger v. Diel, (1875) 1 Calif. Unreported Cases, 889. CHAPTER II DAMNUM ABSQUE INJURIA 3. In General. Of the myriads of losses suffered daily, comparatively few are such as to give any right of action against any person. A, through his own awkwardness, falls and breaks some bones. B, having bad business judgment, enters into a contract through which he loses money. C's house is struck by lightning. D's business is diminished by the honest and legal competition of X. E willingly consents to the perpetration of a wrong upon him by Y. Each of these persons has suffered a loss or damnum, but not one of them has a right of action. Not even nominal damages can be recovered against anybody in any of these cases, for no one has committed an injuria or legal wrong. Right here it is essential that the student notice the legal use of the word injuria. It does not mean "in- jury" in the ordinary popular sense, but it means legal injustice, just as it does in Latin writings. The English word injury is often used with the same legal meaning. A maxim bringing out forcefully this meaning is, "Vol- enti non fit injuria." ("To one who is willing, a legal injustice is not done.") It could not be contended that one who is willing suffers no injury in the popular sense, but it is perfectly clear that he has not suffered a legal injustice for which he can maintain an action. 1 4. Some Instances of Damnum Absque Injuria. A very common instance of damnum dbsque injuria is the 1 SeePasleyv. Freeman, (1789) Vincent, (1845) 10 Mete. (Mass.) 3 T. B. 51, 100 Eng. Kepr. 450, 371, 43 Am. Dec. 442. 12 E. R. C. 235; and Rowland v. 4 DAMNUM ABSQUE INJURIA 5 privileged communication of statements which, if not privileged, would be slanderous or libelous. The fact that a derogatory statement happens to be communicated between persons whose relations are such as to make it privileged, may not lessen the actual damage done; but the fact of privilege prevents the utterance from being an actionable wrong. One who reports to a street car company the miscon- duct of its conductor, even though prompted by ill-will and resentment, is not liable, as he has done the conduc- tor no legal wrong. 2 One land owner may use and improve his land for the purpose for which similar land is ordinarily used, and may do what is necessary for that purpose, building upon it or raising or lowering its surface, although the effect may be to prevent surface water which before flowed upon it from coming upon it, or to draw from adjoining land surface water which would otherwise remain there, or to shed surface water back over land on whidi it would otherwise not go. 3 Public street improvements reasonably made by a city, as in raising or lowering a grade, may cause inconven- ience and loss to an adjoining owner, without giving him a right of action. 4 Where defendant city bought a lot adjoining that of plaintiff and opened a street through the lot purchased, making plaintiff's lot bounded on three sides by public streets, rendering it ungainly and unsightly to the pub- lic, and depriving it of privacy, this is mere damnum absque injuria.* 2 Lancaster v. Hamburger, Minn. 172, 43 N. W. 849, 6 L. E. (1904) 70 O. St. 156, 71 N. E. A. 573. 289, 1 Ann. Gas. 248, 65 L. R. A. 4 Reardon v. San Francisco, 856. (1885) 66 Calif. 492, 6 Pac. 317, 3 The above text is quoted al- 56 Am. Rep. 109; Denver v. Bayer, most verbatim from Jordan v. St. (1883) 7 Colo. 113, 2 Pac. 6. Paul, M. & M. R. Co., (1889) 42 5 Peel v. Atlanta, (1890) 85 LAW OF DAMAGES Logs are driven down a stream, and, without any neg- ligence of the person driving them, are deposited upon the property of a riparian owner. The latter has no action, this being a case of damnum absque injuria. 6 CASE ILLUSTRATIONS 1. A obstructed the light of B, his neighbor, by erecting on his own land a fence twenty feet high, opposite B 's windows. In so doing, A did not interfere with any legal right of B. Therefore, B, though damaged, cannot maintain an action. 7 2. Defendant made an excavation on his own land, near a street, violating no law in doing so. Plaintiff, passing on the street in the dark, stepped over the street line, fell into the exca- vation, and was injured. Plaintiff cannot recover, as it is a case damnum absque injuria. 8 Ga, 138, 11 S. E. 582, 8 L. R. A. 787. 6 Carter v. Thurston, (1877) 58 N. H. 104, 42 Am. Rep. 584; Hot Springs Lumber & Mfg. Co. v. Revercomb, (1906) 106 Va. 176, 55 S. E. 580, 9 L. R. A. (N. S.) 894; Boutwell v. Champlain Realty Co., (1915) 89 Vt. 80, 94 Atl. 108, Ann. Gas. 1918 A 726. "Floating logs may cause dam- age to the estate of the riparian owner; but, if the owner of the logs uses due care and skill in driving them, he is not liable for such damage. Land on navigable streams is subject to the danger in- cident to the right of navigation; and, where logs are driven in a stream in an ordinarily careful, pru- dent manner, the owner is not liable for damages which may re- sult to the riparian owner." Field v. Apple River Log-Driving Co., (1887) 67 Wis. 569, 31 N. W. 17. "So it was said that, if a man be driving cattle through a town, and one of them goes into another man 's house, and he follows him, trespass does not lie for this." Holmes, The Common Law, p. 118, citing Popham, p. 162, and other authorities. Accord: Hartford v. Brady, (1874) 114 Mass. 466, 19 Am. Rep. 377. 7 Mahan v. Brown, (1835) 13 Wend. (N. Y.) 261, 28 Am. Dec. 461. 8 Rowland v. Vincent, (1845) 10 Mete. (Mass.) 371, 43 Am. Dec. 442, CHAPTER III LIMITATION OF RECOVERY TO PLAINTIFF'S INTEREST 5. Limitation of Plaintiff's Interest a Question Arising Usually in Tort. In contract, the limitation of the plain- tiff 's recovery by the nature or extent of his interest does not ordinarily arise; for it is not usually according to the agreement of the parties that rights under the con- tract shall be carved into pieces and assigned piecemeal. Where a contract is broken, the offended party can ordi- narily recover all the damages that are recoverable by any person for the breach. In tort, however, the defendant's wrong may have af- fected numerous interests of numerous persons; and nice questions arise regarding the effect of the limits of a plaintiff's right upon the measure of damages to be al- lowed. 6. How Plaintiff's Recovery Is Limited by His Inter- est. Where an action in regard to conversion of or in- jury to property is between a defendant having legal title and a plaintiff having a more limited interest, the latter can, of course, recover no more than the value of his own interest. Such cases are actions by a pledgee against a pledger for interfering with the pledge, actions by a vendee on credit for conversion against his vendor who has been paid a part of the purchase-price, and actions by a tenant against his landlord for wrongful eviction. 1 It would be absurd to contend that a pledger 1 In trover, where defendant deducted by the jury in assessing holds a lien on the property to damages. Fowler v. Oilman, a certain amount, that amount is (1847) 13 Mete. (Mass.) 267. 7 8 LAW OF DAMAGES could recover the entire value of the thing pledged, when his interest amounts simply to the difference between the value of the pledge and the amount for which it is pledged; and it would be equally absurd to say that a tenant for one year could recover from his landlord com- pensatory damages in a sum greater than the value of his term, if the landlord wrongfully evicts him, in the absence of proximate consequential damage. All of this is easy to see. A greater difficulty comes in the cases wherein the plaintiff, a person having a limited interest in the prop- erty in question, sues the defendant, a stranger, for tor- tious injury to or conversion of the property. Some- times the interests of different persons in the property are sufficiently distinct to enable one to say readily for what elements of damage each person in interest may re- cover. For an injury affecting his use of land during his term, a tenant may recover for the damage done to his interest; and, if the same injury affects the landlord's reversion in the land, he can recover damages to the ex- tent of the injury done to his reversion. 2 If the proof does not show more than that plaintiff is a bare occupant of land upon which a trespass has been committed, or that he has only a three-fourths interest in the premises, an instruction permitting him to recover for the entire damage to the land, is inaccurate. 3 But the fact that plaintiff has given a mere executory and revocable license to cut and remove timber from his land, does not prevent him from getting damages for injury to the trees on the land. 4 A mere finder sues for the conversion of the object he has found. He has a right to the possession of the found article against the entire world, except the true owner, 2 Seely v. Alden, (1869) 61 4 Clarke v. New York, N. H. Pa. St. 302, 100 Am. Dec. 642. & H. R. Co., (1904) 26 E. I. 59, 3 Sweeney v. Connaughtom, 58 Atl. 245. (1901) 100 111. App. 79. PLAINTIFF'S INTEREST 9 and so he may maintain trover and get the entire value of the article, 5 which, of course, does not free him of the obligation to return the article to the true owner, if he is later ascertained. Where crops owned by the tenant or mortgagor of land are converted, the right of action is exclusively in such tenant or mortgagor. 6 For an in- jury to realty, a reversioner may recover damages to the extent of the diminution in value of his reversion, 7 and a life tenant may, according to the better view, recover only for the diminution in value of his estate. 8 But some courts hold that a life tenant may recover damages for any injury, to the extent of the damage inflicted upon the life estate and a remainder or reversion, where the in- jury is permanent. It seems, however, where this view is taken, that the life tenant is under a legal obligation to pay over to the reversioner or remainder man an amount sufficient to compensate for the loss of the latter. 9 A life tenant of personalty can, in trover, get damages for injury to his interest only, and not damages in the total amount of the value of the property. 10 When fixtures are removed or other injury done to mortgaged realty, it is obvious that damage is suffered 5 Armory v. Delamirie, (1721) the basis of the annual rental or 1 Strange 505, 93 Eng. Eepr. 664. income value multiplied by the 6 Woodward v. Pickett, (1857) number of years based on the ex- 8 Gray (Mass.) 617; Page v. Bob- pectation of life of the life tenant inson, (1852) 10 Gush. (Mass.) 99. as determined largely from the 7 Lowery v. Rowland, (1893) mortality tables." 17 E. C. L. 104 Ala, 420, 16 So. 88; Jordan v. 644, citing: Grove v. Youell, (1896) Benwood, (1896) 42 W. Va. 312, 110 Mich. 285, 68 N. W. 132, 33 26 8. E. 266, 36 L. E. A. 519, L. E. A. 297; and Jordan v. Ben- 57 Am. St. Eep. 859. wood, supra. See Greer v. New 8 "In determining the value York, (1865) 1 Abb. Prac. (N. S.) of a life estate the common law 206, 27 N. Y. Super. Ct. 675. rule of valuing the life estate at 9 See Rockwood v. Bobinson, one third and the remainder at two (1893) 159 Mass. 406, 34 N. E. thirds of the capital sum would 521. appear to be followed in some 10 Russell v. Kearney, (1859) jurisdictions, but the modern tend- 27 Ga. 96. ency is to compute the value on 10 LAW OF DAMAGES by both mortgagor in possession and mortgagee. The mortgagor in possession suffers a loss of the present use of the fixtures wrongfully removed or a diminution in the value of the use of the property, plus an injury to the future complete ownership if he redeems ; and the mort- gagee suffers a diminution in value of his security to the extent of the value of the fixtures, and, in a state in which a mortgage transfers legal title to the mortgagee, the loss to the mortgagee is a diminution in value of property to which he actually holds legal title and so may be sued for directly by the mortgagee. 11 It has been held that this applies, not only to first, but to second or third mort- gagees ; 12 but the very reason for this rule as to a first mortgagee would seem to defeat it as to those who are subsequent. 13 The first mortgagee is allowed to recover only because he has legal title ; 14 and, if he has it, no one else can have it at the same time. Second and subsequent mortgagees are mere lienholders, and they cannot be dam- aged either actually or technically by injury to the realty, to any greater extent than mere impairment of security, so that it would seem that this should be the extent of the recovery of any such mortgagee. In states wherein even a first mortgagee has only a lien, it would seem diffi- cult, on principle, to say that a mortgagee's right of ac- tion for an injury to realty gives him a right to damages any more than sufficient to compensate him for the im- pairment of his security ; and so, in jurisdictions adhering to the equitable lien theory of the real estate mortgage, the mortgagee, whether he be a first or a subsequent mort- gagee, it would seem, can recover for only the impair- ment of the value of his lien. 15 In a state in which the 11 Gooding v. Shea, (1869) 103 14 Gooding v. Shea, supra. Mass. 360, 4 Am. Rep. 563. 15 "A mortgagee out of posses- 12 Gooding v. Shea, supra. sion or having na right of pos- 13 Turrell v. Jackson, (1877) session of the mortgaged property 39 N. J. Law 329. See Martin v. can maintain no form of action in Franklin Fire Insurance Co., which the right to recover for a (1875) 38 N. J. Law 140. tort committed on or to such prop- PLAINTIFF'S INTEREST 11 mortgagee holds legal title, the right of action of the mortgagor, of course, is based upon his present posses- sion or right of present possession; 16 and, in a state where legal title remains in the mortgagor, the right of action of the mortgagor is grounded in both legal title and the present right of possession. A somewhat complicated question is how far the satis- faction made to one of a number of holders of interests in the same subject-matter will discharge the claims of the others. Superiority of right of the parties in interest determines. The due satisfaction of the claim that is prior to all of the others will discharge all the claims. But the mere existence of a claim prior to that of the plaintiff does not bar the plaintiff's claim. It is no de- fence to a suit by a mortgagor against a tortf easor to say that the mortgagee has a superior right of action, without saying that such right of action has been satisfied, or that a demand has been made by the party having a prior interest, or that the defendant has been authorized by such party in interest to resist plaintiff's claim for his bene- fit. Neither is it a defence to plead that a person having an inferior right to that of plaintiff has brought an action. 17 " A bailee who is answerable over to the bailor for safe keeping, is entitled to recover the value of the property bailed against a stranger." 18 The holder of a lien against personalty can, in the event of its wrongful taking, procure damages to the extent of the value of his lien. 19 Where the plaintiff is merely a holder of executions to which certain goods are subject, a wrongful taker of the goods cannot be made to respond in damages to the entire amount of the value of the goods, erty is dependent upon possession ject, see the discussion in Gooding or the right of possession, such as v. Shea, supra, trespass, trover, or replevin." 20 18 Caswell v. Howard, (1835) Am. & Eng. Encyc. of Law 10i6. 33 Mass. (16 Pick.) 562. 16 Gooding v. Shea, supra. 19 Outcalt v. Burling, (1856) 25 17 On these phases of the sub- N. J. Law 443. 12 LAW OF DAMAGES but only to the amount of the executions, if such amount happen to be less than the value. 20 It has been held that a mortgagor in possession can maintain an action for injury to the mortgaged real estate and may recover for the whole injury ; but he recovers for his own benefit only such an amount as will compensate him for the damage to his own interest, and what he recovers in excess of this is for the benefit of the mortgagee. 21 If the plaintiff has actually contracted to sell goods in a certain place where they are to be delivered at a speci- fied price, and the goods are wrongfully destroyed in transit, the plaintiff's measure of damages is the price at which the goods are contracted to be sold. His in- terest in the goods really amounts to the right to get the contract price for them. 22 CASE ILLUSTRATIONS 1. A mortgagor cut and carried away timber trees standing on the mortgaged premises. Held that, after condition broken, the mortgagee, although not in actual possession, may maintain tres- pass against the mortgagor and recover for the injury to the free- hold. 23 2. X executes a chattel mortgage on machinery to Y and Z. An officer takes possession of part of the machinery under an attachment issued against A and B, who held legal title under a prior unsatisfied mortgage, but had not taken possession. Held that Y may recover of the officer, in trespass and trover, the full value of the property taken. ' ' The plaintiff was in possession of the property. He had an interest in it, acquired by his mort- gage deed. He is, therefore, entitled to the possession, and to the property also, against all the world but the real owner. The defendant was a mere stranger. * * * If the writ is against 20 Spoor v. Holland, (1832) 8 22 Tompkins v. Kanawha Board, Wend. (N. Y.) 445, 24 Am. Dec. (1882) 21 W. Va. 224. 37. 23 Page v. Robinson, (1852) 10 21 Gooding v. Shea, supra. Cush. (Mass.) 99. PLAINTIFF'S INTEREST 13 a stranger, then, he recovers the value of the property and in- terest, according to the general rule; and holds the balance be- yond his own interest, in trust for the general owner. ' ' 24 24 White v. Webb, (1842) 15 Conn. 302. CHAPTER IV CAUSE AND RESULT 7. In General. From the beginning of history, courts trying civil causes have been troubled with the question what consequences of a wrongful act entitle the wronged person to compensation from the wrongdoer. Putting the matter another way, the question in each case is, "Is the defendant's wrong, legally considered, the cause of the injury to the plaintiff or of a particular element of dam- age under consideration?" or "Can a jury, on the evi- dence, rightly bring in a verdict based upon a conclusion that defendant's wrong is the legal cause of the injury to plaintiff or of such element of damages as is in ques- tion?" The question is often determined by a decision whether, on the evidence, the trial judge was warranted in saying, as a matter of law, that defendant's wrong was not a proximate cause of the injury complained of. It is clear that not all ultimate effects of all acts are compensated for by law. A rightfully calls upon B, inno- cently causing B to forget that he has an important busi- ness appointment. B, through failure to keep the ap- pointment, fails to make a profit of $5,000 on a deal which he would have made but for A's interruption. Certainly, A cannot be held liable for B's loss; and, in order to arrive at such a conclusion, it is not necessary or even proper to consider legal rules as to cause and result. What A did was entirely lawful, there being neither wilful tort nor negligence nor breach of contract. In such a case, there is simply no cause of action whatever, and so it is only confusing to give undue weight to the question what, on such a state of facts, is the legal relation of causes and effects. 14 CAUSE AND RESULT 15 Where A lends a pistol to B, who accidentally injures C, the injury is only a remote result of A's act, which, it may be noted, is not a wrongful act, so that an action against A is not based upon a wrong at all and so must fail, not only for lack of causal connection with A's act, but also for lack of any basis on which to begin an action at all. 1 Nor is a defendant liable for all effects even of a wrong- ful act. In some cases, the defendant has actually been negligent, but may or may not have proximately caused, by his negligence, the damage complained of. In such a case, as damage is the gist of the action in all negligence cases, the entire action succeeds or fails, according to the solution of the question by the jury, under proper instruc- tions, whether the defendant's negligence is the proxi- mate cause of the plaintiff's damage, so as to afford a right to damages. In another case, the defendant has clearly committed a legal injury to the plaintiff, such injury being followed by elements of damage to the plaintiff, which elements we will designate as "1," "2," "3," and "4." Perhaps ele- ments "1" and "3" are unquestionably proximate results of defendant's wrongful act, but there is a difficult ques- tion whether elements "2" and "4," if caused at all by such act, are proximate results of defendant's wrong, i. e. such elements of damage as defendant must make com- pensation for under the law. Where plaintiff's half carload of staves was piled upon defendant's right of way for shipment, and defendant negligently burned them, plaintiff can recover only for the staves destroyed, and cannot recover an additional amount to compensate him for loss by reason of the fact that he cannot market his half carload remaining, this loss being too remote. 2 1 Penny v. Atlantic Coast Line 2 Yazoo & M. V. K. Co. v. Cox, R. Co., (1910) 153 N. Car. 296, (1917) 114 Miss. 49, 74 So. 779. 69 S. E. 238, 32 L. R. A. (N. S.) 1209. 16 LAW OF DAMAGES 8. Direct and Consequential Damages, Damages are divided into two classes, direct and consequential. Direct damages are assessed in compensation for in- juries that are immediately and closely connected with de- fendant 's wrong. The causal connection, being short and direct, is easier to establish than in cases where the injurious result is not immediate. In a suit for assault and battery, it appears that plaintiff's eyes were injured by a blow from the defendant. The injury to plaintiff's eyes was direct damage. One person converts another's horse. The loss of the horse to the owner is an immediate result of the conversion; and the damages assessed against the converter for the loss of the horse, would be called direct damages. Damages for immediate and direct results are so obviously recoverable, that the field of direct damages gives little trouble as to legal prin- ciples. Direct damages can always be recovered, if plain- tiff states and proves a cause of action in which direct or immediate damage is included at all. 3 Consequential damages include all damages assessed for injuries that are not direct or immediate. Not all consequential damage, however, may be recovered for. The mere fact that certain damage is consequent upon a certain legal wrong, does not give the plaintiff a right to recover for such damage. 4 Only such consequential damage as is proximate may be recovered for. Conse- quential damages are usually to be recovered only upon being specially pleaded. Because such damages are 3 See Vosburg v. Putney, (1890) 4 Pennsylvania E. Co. v. Wa- 78 Wis. 85, 80 Wis. 523, 47 N. W. bash, etc., R. Co., (1895) 157 U. S. 99, 50 N. W. 403, 14 L. E. A. 226, 225, 15 Sup. Ct. 576, 39 L. ed. 27 Am. St. Eep. 47; Blake v. Lord, 682; Lewis v. Flint & Pere Mar- (1860) 16 Gray (Mass.) 387; and quette Ry. Co., (1884) 54 Mich. Marsh v. McPherson, (1881) 105 U. 55, 19 N. W. 744, 52 Am. Rep. S. 709, 26 L. ed. 1139. See also 790; Dubuque Wood & Coal Asso- article by the writer, "Confusion ciation v. Dubuque, (1870) 30 la. of the Terms 'Proximate' and 'Di- 176. rect,' " 86 Central Law Journal 224. CAUSE AND RESULT 17 claimed for an injury that is not direct and that is not such as always necessarily occurs as a result of the wrong set up, the defendant is usually held to be entitled to be informed, by means of the plaintiff's specially pleading it, of the result for which he claims consequential dam- ages. 9. Proximate and Remote Damages. As all damages are classified as direct and consequential, so are they all divided into two other classes, marked off from each other along another line, proximate and remote. All direct damage being proximate, in any case wherein the dam- age is direct, as in the case of the smashing of A's nose by B in an ordinary instance of assault and battery, there is no opportunity to dispute the fact that the damage is proximate to the wrong. In such a case of assault and battery, the injury to A's nose is a direct result of the battery by B ; and, as all direct results are proximate, it is also a proximate result and therefore a recoverable element of damage. It is in a case of consequential dam- age that the question of proximity becomes important and frequently all-determining as to the entire case. As has been said, there can be no question as to the proximity of any direct result; but consequential damage may or may not be proximate. Many of the consequential re- sults of a wrong are so remote as not to be the basis of an assessment of damages. It is one of the most important legal rules, that only proximate results of defendant's wrong can constitute a basis of recovery of damages. A proximate result is such a result as is not separated from defendant's wrongful act by any independent, efficient, intervening, causal event that has broken the causal connection between such act and such result. 5 Mere lapse of time or intervention of 5 "The rule limiting the recov- act complained of is universally ery of damage to 'the natural admitted, and the extreme diffi- and proximate consequence of the culty in its practical application is Bauer Dam. 2 18 LAW OF DAMAGES space does not prevent the result from being proximate. Most decisions, both in contract and in tort, however, re- quire that, in order to be proximate, so as to give a right to damages, a result must also be natural and probable ; i. e., that the result must have been such as should have been contemplated as a probable result by the wrongdoer as a reasonable man. "Natural," as here used, seems to mean "normal." 6 As a wrong which is a proximate cause of the plaintiff's injury is the only kind of cause regarded in law as giving a right of recovery of sub- stantial damages, the term "legal cause" is sometimes used synonymously with "proximate cause." Plaintiff's entire damage, or any item thereof, is too remote to allow of recovery, if it is separated from the defendant's wrongful act by an independent, efficient cause which breaks the causal connection ; or, according to most cases, especially if the action is based upon neg- ligence or contract, if it is not a natural and probable result. quite as widely conceded. The conclusion we have reached, it difficulty results not from any de- would prove quite useless to refer feet in the rule, but in applying to them. Damage ta be recoverable a principle, stated in such general must be the proximate consequence language, to cases of diverse facts. of the act complained of; that is, The dividing line between proxi- it must be the consequence that mate and remote damages is so in- follows the act, and not the sec- distinct, if not often quite invis- ondary result from the first canse- ible, that there is, on either side, quence, either alone or in combi- a vast field of doubtful and dis- nation with other circumstances." puted ground. In exploring this Dubuque Wood & Coal Associa- ground there is to be had but little tion v. Dubuque, (1870) 30 la, aid from the light of adjudicated 176. cases. The course followed in 6 "The expression, the 'natu- oach case, which is declared to be ral' consequence, * by no upon one side or the other of the means conveys to the mind an dividing line, is plainly marked adequate notion of what is meant; out, but no undisputed landmarks 'probable' would perhaps be a bet- are established by which the divid- ter expression." Grove, J., in ing line itself may be precisely Sharp v. Powell, (1872) L. B. 7 traced. As so little aid is derived C. P. 253. from prcedents in arriving at the CAUSE AND RESULT . 19 10. Causation in Contract. As a contract right is based entirely upon an agreement of the parties, in con- tract cases, damages only for such losses as were within the contemplation of the parties, at the time of making the agreement, as natural and probable consequences of a breach of the contract, may be recovered. 7 In contract, as in tort, in order to be recoverable, the damage must be a proximate result of the defendant's wrong; 8 but, in contract, the question of proximate cause arises less fre- quently than does the question of the intention of the parties as to liability for different elements of damage. In negligence cases, there is no right of action whatever, unless defendant's negligence is shown to have been a proximate cause of plaintiff's injury; but, in contract cases, proof of the contract and its breach establishes a right of action, just as, in a trespass case, proof of the trespass establishes the plaintiff's right to maintain his action. Having, however, passed the threshold of the action, we usually have the question raised: "What items of the damage suffered by the plaintiff, consequent upon the breach of the contract, can be regarded as having been within the contemplation of the parties at the time they entered the contractual relation ? " To put the ques- tion another way, as regards each item of damage, we must ask: "Did the parties, at the time of making the contract, contemplate this item of damage as a natural and probable consequence of a breach f ' ' The interpreta- tion of the contract, as to this point, as in regard to other matters, is for the court. Where there is delay in the construction of a ship, so that it starts across the sea at a later time than was in- tended, and is caught in a hurricane and destroyed, the 7 Hadley v. Baxendale, (1854) 8 Booth v. Spuyten Duyvil 9 Exch. 341, 5 E. R. C. 502; Prim- Rolling Mill Co., (1875) 60 N. Y. rose v. Western Union Tel. Co., 487. (1894) 154 U. 8. 1, 14 Sup. Ct. 1098, 38 L. ed. 883. 20 LAW OF DAMAGES loss of the vessel is held to be a remote and unexpected consequence of the delay in construction ; 9 and so, where a carrier delays in the forwarding of baggage, its delay is not the proximate cause of its being burned in transit. 16 In many cases, it happens that even the written con- tract of the parties is not absolutely conclusive as to what elements of damage they contemplated as being natural and probable, there being proved external facts which show, without contradiction of any of the terms of the written contract, that the particular item of damage in question was or was not in the contemplation of the parties as being a natural and probable result of a breach. 11 The finding of these facts is for the jury, under proper instructions from the court. The contractor is always liable for the direct result of the breach of his contract, which is the loss of the value of the contract to the other party. 12 Consequential damage, such as loss of profits which the plaintiff had expected to make and certainly would have made by a sub-sale of goods to a third party, cannot be recovered for, unless it is shown, either by interpretation of the contract itself or by proof of circumstances, that the loss was in the con- templation of the parties at the time of making the con- tract. 13 9 De Ford v. Maryland Steel [breach of contract of sale, where Co., (1902) 113 Fed. 72, 51 C. C. seller knew of buyer's subcontract] A. 59. is seeking to recover for some lia- 10 French v. Merchants, etc., bility which he has incurred under Co., (1908) 199 Mass. 433, 85 N. a contract made by him with a E. 424, 19 L. R. A. (N. S.) 1006. third person, he must show that the 11 Devereux v. Buckley, (1877) defendant, at the time he made 34 O. St. 16, 32 Am. Eep. 342; his contract with the plaintiff, Smith v. Green, (1875) 1 C. P. Div. knew of that contract, and con- 92, 23 E. R. C. 566. tracted on the terms of being lia- 12 Leonard v. New York, etc., ble if he forced the plaintiff to a Telegraph Co., (1870) 41 N. Y. breach of that contract. If such 544, 1 Am. Rep. 446. subcontract was not made known 13 "Where a plaintiff under to him at all the defendant cannot such circumstances as the present be made liable for what the plain- CAUSE AND RESULT 21 The rules of proximity and those of certainty must not be confused. Often, when certainty is lacking, the damage is incorrectly said, for that reason, to be too remote. The requirement of certainty, however, properly per- meates the whole field of damages, so that we are bound to meet it in cases involving proximity and remoteness, as in other cases. The following statement of the general rule as to dam- ages in contracts, is made by Blackburn, J. : "The meas- ure of damages when a party has not fulfilled his con- tract is what might be reasonably expected * * * to flow from the nonfulfilment of the contract in the ordinary state of things, and to be the natural consequences of it. The reason why the damages are confined to that is, I think, pretty obvious, viz., that if the damage were excep- tional and unnatural damage, to be made liable for that would be hard upon the seller, because if he had known what the consequence would be he would probably have stipulated for more time, or, at all events, have used greater exertions if he knew that that extreme mischief would follow from the nonfulfilment of his contract. On the other hand, if the party has knowledge of circum- stances which would make the damages more extensive than they would be in an ordinary case, he would be liable to the special consequences, because he has knowledge of the circumstances which would make the natural conse- quences greater than in the other case. ' ' u 11. Causation in Tort. In tort, the formulation and application of proper rules of causation gives far more trouble than in contract. This is due partly to confusion of the principles of negligence with those of causation, and partly to a confusion of proximity of cause in torts with naturalness and probability of result in contracts. tiff has had to pay under it." 14 Cory v. Thames Ironworks Grebert-Borgnis v. Nugent, (1885) & Shipbuilding Cor., (1868) L. R. L. E. 15 Q. B. Div. 85. 3 Q. B. 181. 22 LAW OF DAMAGES Circumstances of tort cases vary widely, and a rule of proximate cause or result, that seems perfectly sound in the case in the decision of which it is laid down, fails to bear close scrutiny when examined in connection with some other case, in which some circumstance presents an unexpected obstacle to the orderly operation of what had seemed a very good general rule. In no field is there less of uniformity of rule ; and in no part of the law has there been more of loose thought and unfirm grounding of de- cisions. 15 It is somewhat difficult to classify the holdings on the subject, and no classification of these cases can possibly be made on any sharp and clear lines of demarcation ; but the decisions may be placed roughly in three groups. On account of ambiguity of expression or meagerness of the statement of principles, it is impossible or nearly im- possible to classify some of the holdings at all. All de- cisions in torts require that, in order to constitute a basis of recovery of damages, the damage must be a proximate 15 ' ' Where damages are claimed the application of such rules, for the breach of a contract, it has Whether the extent, degree, and in- been said that the nearest appli- timacy af causation are sufficient cation of anything like a fixed rule to bring the injurious consequences is, that the injury for which com- of an act within the circle of pensation is asked should be one those wrongs for which the law that may be fairly taken to have supplies a remedy, still remains been contemplated by the parties the great question to be deter- as the possible result of the breach mined in each case upon its indi- of contract. Cockburn, C. J., in vidual facts. That the subject is Hobbs v. London & S. W. Kailway one beset with difficulties is con- Co., (1875) L. E. 10 Q. B. 117. In spicuously shown by the great num- tort, they must be the legal and ber of cases from Scott v. Shep- natural consequence of the wrong- herd, (1772) 2 Wm. Bl. 892 (where ful act. Sedgwiek on "Damages, 82, Sir William Blackstone was unable and cases cited; 2 Gr. Ev. 252- to agree with the court), down to 256, and cases cited. But an ex- the present time, in which judges amination of the numerous cases of equal learning and ability have where this matter has been care- differed as ta the application of fully and learnedly discussed, rules by which all admit they are shows that the intrinsic difficulties to be governed." Oilman v. of the subject are not removed, Noyes, (1876) 57 N. H. 627. although they may be aided, by CAUSE AND RESULT 23 result of the defendant's wrong. The cases of our three groups simply define "proximate" differently. The first group treats "proximate" as meaning sub- stantially "proximate, natural, and probable," and rigidly holds that there can be no recovery for an element of damage, unless such particular element was reasonably to be expected by the tortf easor at the time of committing the tort, reasonably to be anticipated as a natural and probable consequence. 16 It is in this group of cases that 16 Pullman Palace Car Co. v. Barker, (1878) 4 Colo. 344, 34 Am. Rep. 89. For criticism of this ease, see p. 55 note. See also Hoag v. Lakeshore, etc., K. Co., (1877) 85 Pa. 293, 27 Am. Eep. 653. In the latter case, a recent landslide had thrown the defendant's oil train from the track. The oil tanks burst, and the oil, becoming ignited, flowed down into a creek, just then augmented by recent rains. Flow- ing down the creek, the burning oil ignited and destroyed the plaintiff's buildings, which were 300 or 400 feet from the track. No strong case of negligence was made out; perhaps it could properly be said that no negligence was shown by the evidence; but the court, re- fraining from a determination of this point, decided in favor of the defendant, on the ground that, even granting that the defendant was negligent, the damage to the plaintiff was too remote to warrant a recovery. The strictness o-f the rule laid down by the court is shown best by the following quo- tation from the decision: "It would be unreasonable to hold that the engineer of the train could have anticipated the burning of the plaintiff's property as a con- sequence likely to flow from his negligence in not looking out and seeing the landslide. The obstruc- tion itself was unexpected. An engine had passed along within ten minutes, with a clear track. But the obstruction was there, and the tender struck it. The probable con- sequence of the collision, such as the engineer would have a right to expect, would be the throwing of the engine and a portion of the train off the track. Was he to an- ticipate the bursting of the oil- tanks; the oil taking fire; the burn- ing oil running into and being car- ried down the stream; and the sudden rising of the waters of the stream by means of which, in part at least, the burning oil set fire to the plaintiff's buildings? This would be a severe rule to apply, and might have made the defend- ants responsible for the destruc- tion of property for miles down Oil Creek." As the author has said in criticizing this case, in 83 Cent. L. J. 149 note, "It is interesting to note the remark of the court to the effect that a different rule in this case 'might have made the defendants liable for the destruction of property for miles down Oil Creek.' Even if such were the obvious result of a holding adverse to the com- 24 LAW OF DAMAGES we find it most evident that the court has confused rules of contract with those of tort and has often hopelessly in- termingled the rules for determining the fact of negli- gence with the rules for ascertaining the fact of proximity of cause and effect. It is founded upon no sound prin- ciple and is not the view of most courts today. Most of the cases of this group are negligence cases. The second group, like the first, holds that the conse- quences, in order to be proximate, must be natural and probable, but puts in the important qualification that, in order to be proximate, the particular injury need not be such a one as the tortfeasor might be said to have had in his contemplation at the time of the commission of the tort, but that it is sufficiently natural and probable if it was of a class of consequences which the tortfeasor might reasonably be said to have had in contemplation. 17 This qualification keeps decisions of the second group from arriving at some of the wholly absurd conclusions set forth in some cases of the first group. More cases may be classified as falling within this group than within the two others, most jurisdictions now following substan- pany, it would not constitute a that it would not seem that it valid argument against such a should be seriously argued that it holding. Distance in space, and should have any influence in fram- lapse of time, of themselves, with- ing a rule of proximate cause. The out any independent, efficient, in- language of the court indicates tervening cause, cannot properly plainly that no rule of proximate be said so to break causal con- cause must be applied which will nection as to cut off a right of be too severe on the defendant, action." The case seems to be No such principle is law. based entirely upon unsatisfactory These cases seem sufficiently to reasoning, placing the railroad's illustrate the fantastic workings of nonliability upon the grounds: first, the rule applied in the first group that the company's servants could of cases. not have foreseen the exact in- 17 Brown v. Chicago 1 , M. & St. jurious results which the plaintiff P. Ey. Co., (1882) 54 Wis. 342, has suffered; and second, that the 11 N. W. 356, 41 Am. Eep. 41; application of a different rule Benedict Pineapple Co. v. Atlantic might make the railroad's liability Coast Line B. Co., (1908) 55 Fla. very large. The grotesque nature 514, 46 So. 732, 20 L. E. A. (N. of the latter ground is so apparent S.) 92. CAUSE AND RESULT 25 tially the rule stated in this paragraph. The rule, how- ever, is not logical, for it, like the rule set forth in the first group of cases, treats "proximate" as meaning not only " proximate," but also " natural" and " probable;" nor is it nearly always satisfactory in the results it pro- duces. When once the fact of defendant's wilful tort or negligence is proven, it would seem that inquiry whether he contemplated the injuries resulting to the plaintiff or any results of the same kind, should be immaterial, if no independent, efficient cause intervenes between the de- fendant's wrong and the plaintiff's injuries. To hold that the defendant is liable only for results of the kind he may be taken to have expected as a reasonable man, leads to the conclusion that there must be cases of hor- rible wrong, negligently inflicted, with no remedy against the wrongdoer, merely because he cannot be considered to have contemplated such injuries. This second rule is often uncertain and confused in the manner of its ad- ministration, but it usually brings about the same prac- tical net results as does the more logical rule administered in cases of the third group and considered in the next paragraph. The third group of cases simply takes the sound and rational view that "proximate" means "proximate," and that only. These cases consider naturalness and proba- bility only as regards the fact of negligence or wilful wrong, carefully differentiating between the rule for de- ciding whether there is negligence and that for determin- ing what consequences of the negligence shall be made the basis of compensation. In Isham v. Dow, 18 the Su- 18 (1898) 70 Vt. 588, 41 Atl. and probable consequences did not 585, 45 L. R. A. 87, 67 Am. St. arise in the Daniels Case [another Hep. 691. Perhaps the clearest ex- Massachusetts case under the position erf this view thus far same statute], but it does arise made in a decision is the following', in actions at common law and un- from a recent Massachusetts case, der some other statutes in order under a workmen's compensation to decide whether there has been act: " The inquiry as to reasonable negligence. Even then the ques- 26 LAW OF DAMAGES preme Court of Vermont very properly says: "When negligence is established, it imposes liability for all the injurious consequences that flow therefrom, whatever they are, until the intervention of some diverting force that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law 's notice. But in administering this rule, care must be taken to distinguish between what is negligence and what the liability for its injurious con- sequences. On the question of what is negligence, it is tion is not whether 'the conse- quence is a reasonable and prob- able one,' but whether harm to some one of the same general kind as that sustained by the plaintiff was a reasonable and probable re- sult of the act complained of as bearing upon the ultimate question whether there was negligence on the part of the defendant. Negli- gence may be found even though the particular result of the act may not have been susceptible of being foreseen. (Citing eases.) Other in- stances where liability is not pred- icated upon negligence, and where therefore there is no occasion to> consider in any aspect natural and probable consequences, are actions to recover damages arising from fires set by locomotive engines. Bowen v. Boston & A. E. Co., 179 Mass. 524, 61 N. E. 141; from a vicious animal knowingly kept, Marble v. Ross, 124 Mass. 44, 1 Am. Neg. Gas. 424; from dogs, Pressey v. Wirth, 3 Allen 191, 1 Am. Neg. Cas. 143; or from the breaking of impounded water, Ry- lands v. Fletcher, L. R. 3 H. L. 330. So far as concerns conduct of defendants, liability follows absolutely in such cases when the particular decisive fact is shown to exist." In re Sponatski, (1915) 220 Mass. 526, 108 N. E. 466, 8 N. C. C. A. 1025. Although this is a case arising under a statute, these remarks are clearly appli- cable to common law cases, just as they purport to be. " 'The general rule in tort,' says Mr. Sutherland (3 Suth. Dam. 714), 'is that the party who com- mits a trespass, or other wrongful act, is liable for all the direct in- jury resulting from such act, al- though such resulting injury could not have been contemplated as the probable result of the act done. ' This is expressly sanctioned in the Maryland case cited where a can- cer was the intervening cause. It is a contradiction to say that parties contemplate have in mind things of which they are sup- posed to be unmindful." McNa- mara v. Village of Clintonville, (1885) 62 Wis. 207, 22 N. W. 472, 51 Am. Rep. 722. "The inquiry must * * * always be whether there was any intermediate cause disconnected from the primary fault, an-1 self op- erating, which produced the in- jury." Milwaukee & St. Paul Ry. Co. v. Kellogg, (1876) 94 U. 8. 469, 24 L. ed. 256. CAUSE AND RESULT 27 material to consider what a prudent man might reason- ably have anticipated ; but when negligence is once estab- lished, that consideration is entirely immaterial on the question of how far that negligence imposes liability." Likewise, where it is necessary or expedient for the plain- tiff to show the wilfulness of the defendant's wrongful act, the fact that the injury to the plaintiff would be a natural and probable consequence of the wrong, which the defendant, as a reasonable man, must have foreseen, is highly pertinent as showing the wilfulness of the de- fendant's wrongful act. In cases wherein negligence is so gross as to amount to evidence of malice or wilfulness, inherent likelihood that the injurious consequences would follow, is material as indicating the wanton state of the defendant's mind at the time of the occurrence of the negligence. But, just as, in the cases based upon acts alleged only to be negligent, one must not confuse rules for ascertaining the fact of negligence with rules for as- certaining the proximity of causal connection between the negligent act and the damage, so here one must not mix principles as to malice or wilfulness with those of causation. The tendency of most courts today is decidedly away from the rule stated as that of the first group ; and, as many cases indicate, there is an inclination either to follow the cases of the third group or so to administer the rule of the second group as to give substantially the same results as would be had in cases of the third group under similar circumstances. Just where the court of a given state stands on the matter is sometimes a little difficult to ascertain, as slightly varying rules, or inter- pretations of rules, governing the matter, are sometimes handed down by the same court on slightly varying states of fact. On few subjects is it more important to examine adjudicated cases in the state in which a new case arises, although even this precaution does not always give a fair forecast of what the court is going to hold in the particular 28 LAW OF DAMAGES case. When confronted by a case presenting new and un- foreseen facts, a court sometimes finds it necessary to modify or completely overturn a rule of proximate cause laid down in an earlier case. 19 If the court has laid down 19 An interesting case on neg- ligence and proximate cause is Ad- derley v. Great Northern By. Co., [1905] 2 I. B. 378, 4 B. B. C. 293. "There is no infallible rule by which one can distinguish between a proximate and a remote cause." Sociste Nouvelle D'Armement v. United States S. S. Co., (1910) 176 Fed. 890, 100 C. C. A. 360, 30 L. B. A. (N. 8.) 1210. "Few questions have more fre- quently come before the courts than that whether a particular mis- chief was the result of a partic- ular 1 default. It would not be useful to examine the numerous de- cisions in which this question has received consideration, for no case exactly resembles another, and slight differences of fact may be of great importance. The rules of law are reasonably well settled, however difficult they may be of application to the varied affairs of life." Moody, J., in Atchison, etc., B. Co. v. Calhoun, (1908) 213 U. S. 1, 53 L. ed, 671, 29 Sup. Ct. 321. Although these and other expres- sions of judicial opinion force- fully and advisedly warn us against the undiscriminating use of rules and precedents in determining proximity, probably no judge would say that the most carefully formu- lated rules of causation are of no value whatever, or that well-rea- soned cases may not properly be given much consideration in the decision of future cases very sim- ilar as to facts. "The general rule in torts ap- plied to such actions as those of negligence is that a wrongdoer is responsible for the natural and proximate consequences of his con- duct, and what are such conse- quences must be generally left for the determination of the jury. * * * I think the rule must be regarded as well recognized that in an action brought for the re- dress of a wrong intentionally, willfully and maliciously com- mitted, the wrongdoer will be held responsible for the injuries which he has directly caused even though they lie beyond the limit of natural and apprehended results as estab- lished in cases where the injury was unintentional. ' ' Garrison v. Sun Printing, etc., Association, (1912) 207 N. Y. 1, 100 N. E. 430, Ann. Cas. 1914 C 288, citing: Milwaukee & St. P. By. Co. v. Kel- logg, (1876) 94 U. S. 469, 24 L. ed. 256; Spade v. Lynn & Boston B. Co., (1897) 168 Mass. 285, 47 N. E. 88, 60 Am, St. Bep. 393, 38 L. B, A. 512; Lehrer v. Elmore, (1896) 100 Ky. 56, 37 S. W. 292; Meagher v. Driscoll, (1868) 99 Mass. 281, 96 Am. Dec. 759; Swift v. Dick- erman, (1863) 31 Conn. 285; Eten v. Luyster, (1875) 60 N. Y. 252; Williams v. Underbill, (1901) 71 N. Y. Supp. 291, 63 App. Div. 223. For an excellent discussion of the difference between "immediate cause" and "producing cause," see Deisenreiter v. Kraus-Merkel Malting Co., (1897) 97 Wis. 279, 72 N. W. 735. The proximate cause CAUSE AND RESULT 29 any but the rule in Isham v. Dow, above mentioned, it is likely to find it necessary to vary from its rule in order to do justice in some cases that arise. 12. Intervening Cause. The question whether the wrong of the defendant was a proximate cause of the damage to the plaintiff, usually resolves itself into a ques- tion whether some certain event or condition is an inde- pendent, efficient cause intervening between the defend- ant's act and the plaintiff's loss. Judicial opinions vary greatly as to whether certain things constitute interven- ing, independent, efficient cause. What seems to one court to be merely a link in an unbroken chain of causal connection, entirely dependent upon the defendant's wrong, set in motion or caused to operate by his wrong, seems to another court to be an absolutely independent act, event, or condition, completely severing the causal connection between the defendant's wrongful act and the damage to the plaintiff. There are, however, a few gen- eral principles, which are usually followed in deciding questions of intervening cause. The simplest and clearest case of independent, efficient, intervening cause is the wholly voluntary act of the plain- tiff or of a third party or of an animal, not rendered necessary or likely by the defendant's wrongful act. Here is no difficulty. The defendant wrongdoer cannot be held liable for consequences which are brought about by the acts of free agents not in any sense impelled by the acts of the defendant. 20 with which a court is concerned is human agency has intervened be- not necessarily the immediate tween the fact accomplished and cause, but it must be the produc- its alleged cause." Societe Nou- ing or efficient cause. velle D 'Armement v. United States 20 "One of the most valuable S. 8. Co., (1910) 176 Fed. 890, tests to apply to determine whether 100 C. C. A. 360, 30 L. E. A. (N. a negligent act is the proximate S.) 1210. It must, however, be or remote cause of an injury is remembered that, when once it is to determine whether a responsible settled that no human agency has 30 LAW OF DAMAGES Where the owner of a building negligently permits oil and waste to be stored therein, and others overturn a lamp, setting fire to and destroying the building, the owner 's negligence is not the proximate cause of the loss of the building. 21 Under the doctrine of "attractive nuisance," the per- son who maintains a thing likely to attract small children into danger may be held liable for damage resulting to young and indiscreet children from negligent mainte- nance, where they are lured by the attraction and injured thereby. The act of the child, backed only by his imma- ture volition, is not regarded as an independent efficient intervening cause. 22 Defendant's negligence in maintaining a loosened mal- let in connection with a ' ' striking machine ' ' in its amuse- intervened in a given case, the question of intervening cause is only parly settled, as it is still necessary to determine whether an act of God, an act of an animal, or an accident, presents itself as an independent intervening cause. Acts of persons as intervening cause: Bhad v. Duquesne Light Co., (1917) 255 Pa. 409, 100 Atl. 262, L. E. A. 1917 D 864; Vicars v. Wilcocks, (1806) 8 East 1, 103 Eng. Repr. 244; Chesapeake & Ohio Ey. Co. v. Wills, (1910) 111 Va. 32, 68 S. E. 395, 32 L. E. A. (N. S.) 280; Tisdale v. Norton, (1844) 8 Mete. (Mass.) 388. Act of animal as intervening cause: Hadwell v. Righton, [1907J 2 K. B. 345, 5 B. E. C. 115, 76 L. J. K. B. N. S. 891, 71 J. P. 499, 97 L. T. N. S. 133, 23 Times L. E. 548, 5 L. G. E. 881. "The fact that between the de- fendant's fault and the plaintiff's injury there are intermediate acts of other persons, even of the plain- tiff, will not render the injury too remote for legal contemplation and redress, if the intervening acts are not wrongful, and either natu- rally follow upon the defendant's misconduct, or merely furnish the conditions on which that miscon- duct operates." McCann v. New- ark & S. O. E. Co., (1896) 58 N. J. Law 642, 34 Atl. 1052, 33 L. E. A. 127. 21 Beckham v. Seaboard Air Line Ey. Co., (1907) 127 Ga. 550, 56 S. E. 638, 12 L. E. A. (N. S.) 476. 22 Elwood v. Addison, (1901) 26 Ind. App. 28, 59 N. E. 47, 11 Am. Neg. Eep. 496; Indianapolis v. Emmelman, (1886) 108 Ind. 530, 9 N. E. 155, 58 Am. Eep. 65; Matt- son v. Minnesota etc. R. Co., (1905) 95 Minn. 477, 104 N. W. 443, 70 L. E. A. 503, 111 Am. St. Eep. 483, 5 Ann. Cas. 498. Con- tra: Carpenter v. Miller, (1911) 232 Pa. 362, 81 Atl. 439, 36 L. E. A. (N. S.) 932. CAUSE AND RESULT 31 ment park, was the proximate cause of plaintiff's injury by the flying off of the head of the mallet when he at- tempted to use it. 23 A carrier failing to light its cars and badly overcrowd- ing them is not liable for the robbery of a passenger, the proximate cause being the act of the robber. 24 A carrier wrongfully carrying a passenger past his station is not liable for injury resulting to him from ex- posure to an unexpected storm during his walk to his home, if it was possible for him to protect himself by stopping at a house, the proximate cause of the injury being plaintiff's voluntarily exposing himself to the storm. 25 The act of an animal does not always break the chain of causation. Where the negligence of the defendant is the immediate cause of an act of an animal, which act in turn causes injury to the plaintiff, the defendant is usually held to be liable. This is often put upon the ground that the act of the animal and the resulting injury were natural and probable consequences of the defend- ant 's negligence, a kind of consequences which he might have foreseen as a reasonable man. 26 Where an inanimate agency, not set in motion or made possible of operation by defendant's wrong, is the imme- diate cause of the injury, the defendant's wrongful act can be no more than a mere remote cause, as the inani- 23 Wodnik v. Luna Park 24 Chancey v. Norfolk & W. R. Amusement Co., (1912) 69 Wash. Co., (1917) 174 N. Car. 351, 93 638, 125 Pac. 941, 42 L. R. A. (N. S. E. 834. S.) 1070. The act of the plaintiff 25 Garland v. Carolina, etc., in using the mallet cannot be said Ry., (1916) 172 N. Car. 638, 90 to be an independent intervening S. E. 779, L. R. A. 1917 B 706; cause, as it is an act induced by Le Beau v. Minneapolis, St. P., the invitation of the defendant and etc., R. Co., (1916) 164 Wis. 30, expected by both parties. Ill con- 159 N. W. 577, L. R, A. 1917 A sequences of negligence of the de- 1017. fendant in the maintenance of his 26 Fake v. Addicks, (1890) 45 apparatus are both probable and Minn. 37, 47 N". W. 450, 22 Am. proximate. St. Rep. 716. 32 LAW OF DAMAGES mate agency has certainly broken the causal connection between the wrong and the damage. Some of the most difficult cases are those in which a negligent delay by a carrier has caused goods to suffer the effects of a storm or flood. If the carrier, knowing, as he always does, that the danger of accidental destruction will be increased by keeping the goods in transit for an unnecessary length of time, negligently delays, thus permitting the goods to be acted upon by an injurious natural agency, which other- wise could not have reached them, it would seem, on prin- ciple, that he should respond in damages. 27 But this view is not always taken. 28 The question of naturalness and probability of the occurrence of such an intervening cause is given great weight in the decision of many cases. "Where, through defendant's wrong, a storm or a freeze is given opportunity to injure the goods of plaintiff, the question whether an act of God is here an independent intervening cause, has given the courts much difficulty; and the decisions are far from being harmonious. Most of the cases involving this question are negligence cases, and, here as elsewhere, it is essential to a clear under- standing of all the matters involved, that we keep the question of the fact of negligence carefully distinguished from the question of causation. If the defendant should have foreseen that his conduct might result in exposing the plaintiff's goods to hazards of the weather, it is reasonable to hold that he has been negligent. He having 27 Green-Wheeler Shoe Co. v. question being whether the loss is Chicago, R. I. & P. Ey. Co., (1906) occasioned by the act of God, in 130 la. 123, 106 N. W. 498, 5 L. which case it is simply regarded R. A. (N. 8.) 882. as coming under one of the well 28 Memphis, etc., E. Co. v. recognized exceptions to the rule Reeves, (1869) 10 Wall. (U. 8.) of absolute liability of a common 176, 19 L. ed. 909. In the or- carrier of goods. In such cases, no dinary, simple instance of a car- question of the carrier's wrong is rier's pleading an act of God, involved; it is only a question questions of negligence and inter- whether the common carrier's ex- vening cause, such as those here traordinary liability covers the discussed, do not arise, the only loss in question. CAUSE AND RESULT 33 been negligent, and his negligence having been proved to be the efficient cause of the subjection of the plaintiff's goods to the elements, it follows that he should be held liable for the loss. Similar in principle are cases wherein fires have been negligently set by the defendant and driven by a high wind in such a manner as to do damage to the plaintiff or his property. Clearly, the defendant must be held liable, if the occurrence of the intervening event imme- diately causing the injury, together with such consequent injury, should have been foreseen by the defendant as a natural and probable result of his wrong. 29 Where a municipality negligently permits a hole to exist in a sidewalk, and such hole fills with water, which freezes, and the resulting ice causes a pedestrian, in the exercise of due care, to slip and be injured, it would seem that there is no independent cause intervening between the negligence and the injury ; 30 but the law is sometimes held to be otherwise. 31 In some instances, the defendant, by his wrong, has made it necessary that the plaintiff or third persons do certain acts for the purpose of avoiding damage. Such acts are not independent of the defendant's wrong, and damage produced by an act done for the purpose of avoid- ing injurious consequences of such wrong, are not remote from it. Reasonable acts for the purpose of avoiding damages do not break the chain of causation between defendant's wrong and the damage resulting proximately from such reasonable acts. The attempt of the plaintiff or of a third person to stop a horse which has been 29 Milwaukee & St. P. Ry. Co. 30 Adams v. Ohicopee, (1888) v. Kellogg, (1876) 94 TJ. S. 469, 147 Mass. 440, 18 N. E. 231. 24 L. eel. 256; Laming v. Illinois 31 Chamberlain v. City of Osh- Central R. Co., (1890) 81 la. 246, kosh, (1893) 84 Wis. 289, 54 N. 47 N. W. 66; Lillibridge v. Me- W. 618, 19 L. R. A. 513, 36 Am. Cann, (1898) 117 Mieh. 84, 75 N. St. Rep. 928. W. 288, 41 L. R, A. 381, 72 Am. St. Rep. 553. Bauer Dam. 3 34 LAW OF DAMAGES frightened through defendant's negligence, does not make subsequent injury to the plaintiff's person or property by the runaway horse a remote result of such negligence. 32 Likewise, where the wrong of the defendant has necessi- tated a surgical operation upon the plaintiff and such operation has resulted in injury, it has been held that de- fendant 's wrong is still a proximate cause of such in- jury. 88 Where plaintiff in a personal injury case used ordinary care in the selection of a physician, the malpractice of the physician in treating the injury is held not to be such an intervening cause as to break the chain of causal connec- tion between the original wrong and plaintiff 's final condi- tion. It is said that "the injury caused by the malpractice would not have occurred but for the original injury, and results because of such injury, and was a proxi- mate result thereof. ' ' 34 This seems to be a correct gen- 32 Griggs v. Fleckenstein, (1869) 14 Minn. 81, 100 Am. Dee. 199. See also Halesrap v. Gregory, [1895] 1 Q. B. 561. 33 Kettig v. Fifth Ave. Transp. Co. Limited, (1893) 6 Misc. 328, 26 N. Y. Supp. 896. So held also under employers' liability act, Shirt v. Calico Printers' Associa- tion, Limited, [1909] 2 K. B. 51, 3 B. E. C. 62, 78 L. J. K. B. N. S. 528, 100 L. T. N. S. 740, 25 Times L. E. 451, 53 Sol. Jo. 430. See note on "Accident as proximate cause of death under anesthetic," 3 B. E. C. 65. If plaintiff has exercised reasonable care in securing a phy- sician, he is not required to insure such physician's professional skill or his "immunity from accident, mistake, or error in judgment." Stover v. Bluehill, (1863) 51 Me. 439; Laeser v. Humphrey, (1884) 41 O. St. 378, 52 Am. Eep. 86. See also: Terre Haute & In- dianapolia E. Co. v. Buck, (1884) 96 Ind. 346, 49 Am. Eep. 168, where malarial fever is held not an independent intervening cause; Beauchamp v. Saginaw Mining Co., (1883) 50 Mich. 163, 15 N. W. 65, 15 Am. Eep. 30, similar holding as to pneumonia; and Wieting v. Millston, (18'90) 77 Wis. 523, 46 N. W. 879, where it is so held as to accidental second breaking of plaintiff's leg, first broken wrong- fully by defendant. 34 Hooyman v. Eeeve, (Wis. 1919) 170 N. W. 282. See also: Pullman Palace Car Co. v. Bluhm, (1884) 109 111. 20, 50 Am. Eep. 601; Chicago C. E. Co. v. Cooney, (1902) 196 111. 466, 63 N. E. 1029; Goshen v. England, (1889) 119 Ind. 368, 21 N. E. 977, 5 L. E. A. 253; Eice v. Des Moines, (1875) 40 la. 638; Stover v. Bluehill, (1863) 51 Me. 439; McGarrahan v. New York, N. H. & H. E. Co., (1898) CAUSE AND RESULT 35 eral rule, and its application is clear in cases wherein the physician has done no act of such a nature as to constitute an independent intervening cause; but it is submitted that the mere question, "Would the loss have occurred but for defendant's wrong?" is not an adequate test as to proximate cause. To make the answer to this question the one determining fact in deciding the legal relation between cause and effect, is to make possible the assess- ment of damages for losses extremely remote from the wrong complained of. Where a surgeon, in attempting to cure an injury wrongfully caused, negligently operates on the wrong side of the patient's body, mistaking him for another patient, the surgeon's act is a wholly wrong- ful, independent and intervening cause, for which the original wrongdoer is not responsible, although it would not have occurred but for the original wrong. 35 Refusal of an injured person to submit to a surgical operation, which might or might not have saved his life, does not break the chain of causal connection between his injury and his death. In such a case, there is no proof that such refusal was even a contributing cause of his death. 36 If plaintiff, after receiving a personal injury, has at- tended to such duties as he might prudently perform, and, in so doing, has incurred serious injury, the person who inflicted the original wrong is still liable and his liability extends to the total amount of the injury, as no negligence of plaintiff has broken the causal connection. 87 171 Mass. 211, 50 N. E. 610; Pur- Lyons v. Erie Ry. Co., (1874) 57 chase v. Seelye, (Mass. 1918) 121 N. Y. 489; Loeser v. Humphrey, N. E. 413; Reed v. Detroit, (1896) (1884) 41 O. St. 378, 52 Am. Rep. 108 Mich. 224, 65 N. W. 967; Tut- 86. tie v. Farmington, (1876) 58 N. H. 35 Purchase v. Seelye, (Mass. 13; Boynton v. Somersworth, 1918) 121 N. E. 413. (1878) 58 N. H. 321; Batton v. 36 Sullivan v. Tioga R. Co., Public S. C., (1908) 75 N. J. Law (1889) 112 N. Y. 643, 20 N. E. 569, 857, 69 Atl. 164, 18 L. R, A. (N. 8 Am. St. Rep. 793. S.) 640, 127 Am. St. Rep. 855; 37 Batton v. Public Service 36 LAW OF DAMAGES Quick and uncontemplated acts of the plaintiff or of third persons, sometimes practically involuntary, ren- dered likely or necessary by the defendant's wrong, do not constitute an independent intervening cause. 38 An involuntary or purely accidental act of the plaintiff is, under some circumstances, held not to break causal con- nection. 39 Where a pre-existent physical condition of the plain- tiff has made a tortious injury by the defendant more serious than it would have been if his condition at the time of the infliction of the injury had been normal, it is sometimes contended that such pre-existing condition is an independent intervening cause ; but the overwhelming weight of authority is against this contention. 40 If it were held that the weakness or diseased condition of a person, if unknown to the tortfeasor, broke the causal connection between a negligent or wilful wrong to his person and the consequences thereof, some of the most terrible in- corporation, (1908) 75 N. J. Law A. 540, 21 L. B. A. 289; Tiee v. 857, 69 AtL 164, 18 L. E. A. (N. S.) Munn, (1883) 94 N. Y. 621; Brown 640, 127 Am. St. Eep. 855. v. Chicago, M. & St. P. By. Co., 38 Scott v. Shepherd, (1773) 2 (1882) 54 Wis. 342, 11 N. W. 356, W. Bl. 892, 96 Eng. Bepr. 525, 3 41 Am. Bep. 41; Vosburg v. Put- Wils. (K. B.) 403, 95 Eng. Bepr. ney, (1890) 78 Wis. 85, 80 Wis. 1124. 523, 47 N. W. 99, 50 N. W. 403, 14 39 Such is the usual quick act L. B. A. 226, 27 Am. St. Bep. 47. of a person actuated by fright Contra: Pullman Palace Oar Co. caused by an explosion or fire re- v. Barker, (1878) 4 Colo. 344, 34 suiting from defendant's negli- Am. Bep. 89. gence. See Gannon v. New York, Likewise, under workmen's com- N. H. & H. R. Co., (1899) 173 Mass. pensation acts, it is customary to 40, 52 N. E. 1075, 43 L. B. A. 833, allow compensation for an injury, 5 Am. Neg. Bep. 613, where plain- even though a previous weakness tiff impulsively and unguardedly of the workman has contributed to tried to escape from a car in which such injury, provided only that the a blaze had started. See alsa Wil- latter has arisen out of the em- liamson v. St. Louis Transit Co., ployment. Bell v. Hayes-Ionia (1907) 202 Mo. 345, 100 S. W. Co., (1916) 192 Mich. 90, 158 N. W. 1072. 179; Hartz v. Hartford Faience 40 Mann Boudoir Car Co. v. Co., (1916) 90 Conn. 539, 97 Atl. Dupre, (1893) 54 Fed. 646, 4 C. C. 1020. CAUSE AND RESULT 37 juries ever inflicted by a wrongdoer would be practically wrongs without remedies. The mere intervention of time, space, events, physical objects, or conditions, is not of itself an intervening cause, although it may have a tendency to show that a cause has had opportunity to intervene. 41 A long period of time may elapse between defendant's wrong and the oc- currence of the resulting loss for which he is held liable, distance and physical objects may intervene between the place of the wrongdoing and the place of its injurious effect, many events contributing or not contributing to the result may occur, and pre-existent conditions may aid in bringing about the injury ; but these do not necessarily break causal connection, although proof of them, in many instances, will tend to weaken the plaintiff's case, by affording an indication that some intervening and inde- pendent event is the juridical cause of the damage. 13. The Doctrine of Last Clear Chance. Just as de- fendant's negligence, in order to give a right of action, must be the proximate cause of damage to plaintiff, so plaintiff's contributory negligence is not the cause of his injury, in a legal sense, if subsequent negligence of de- fendant intervenes and proximately causes the damage complained of. To put it in another way, if defendant had a last clear chance to avoid damage, he is liable, al- though contributory negligence of plaintiff has occurred. Where plaintiff negligently walked upon a trestle of defendant railway company and was struck and injured by defendant's train, although defendant's engineer had a last clear chance to avoid the accident by slowing down or stopping, then the proximate cause of the accident is the failure of defendant 's engineer to exercise due care to prevent the accident. 42 41 See Milwaukee & St. P. By. 42 Bogan v. Carolina Central Co. v. Kellogg, (1876) 94 U. S. R. Co., (1901) 129 N. Car. 154, 39 469, 24 L. ed. 256. S. E. 808, 55 L. R. A. 418. 38 LAW OF DAMAGES Where plaintiff negligently crossed defendant's electric railroad track ahead of a car, and was struck and injured, and defendant's motorman had a last clear chance to avoid, defendant is liable. 43 Where plaintiff, a small boy, was negligently crossing a street, looking at pictures of noted ball-players, and not paying attention to his own safety, and defendant, in an automobile, struck and injured him after having a last clear chance to avoid, defendant is liable. 44 14. Proximate Cause Under Industrial and Civil Dam- age Statutes. Under statutes securing a right of action to a workman against his employer for injuries occurring in the course of the employment, the change from the com- mon law is sometimes more revolutionary in the matter of the granting of the right of action in the beginning, and, usually, in laying down more or less arbitrary sums to be paid as compensation for certain injuries sustained "In some cases there may have the rule. The plaintiff fettered the been negligence on the part at a front feet of his donkey, and plaintiff remotely connected with turned him into a public highway the accident, and in these cases the to graze. The defendant's wagon question arises whether the defend- coming down a slight descent at a ant, by the exercise of ordinary 'smartish' pace, ran against the care and skill, might have avoided donkey, and knocked it down, the the accident, notwithstanding the wheels of the wagon passing over negligence of the plaintiff, as in it.. The poor brute meekly closed the oft-quoted donkey case, Davies its wearied eyes and gave up the v. Mann. There, although without ghost, an apparently immortal the negligence of the plaintiff the spirit that has long since put Ban- accident could not have happened, quo 'a ghost to shame. From such the negligence is not supposed to a humble beginning arose the have contributed to the accident great doctrine of the 'last clear within the rule upon this subject." chance.' " Bogan v. Carolina Tuff v. Warman, (1857) 2 C. B. Central R. Co., supra. N. 8. 739. 43 Pilmer v. Boise Traction "The case therein cited (Davies Co., (1908) 14 Idaho 327, 94 Pac. v. Mann, [1842] 10 M. &. W. 546, 432, 15 L. R. A. (N. S.) 254. 152 Eng. Repr. 588), in which the 44 Deputy v. Kimmell, (1914) plaintiff's immortal donkey, by its 73 W. Va, 595, 80 S. E. 919, Ann. death, established a world-known Cas. 1916 E 656. name, is regarded as the origin of CAUSE AND RESULT 39 by workmen receiving certain wages, than it is in affect- ing the operation of the principles of proximate cause. Where a statute allows a right of action for injuries re- ceived in the course of employment, there is often great liberality in deciding that an accident has proximately re- sulted from the employment, some of the cases having allowed compensation for injuries sustaining no very close causal connection with such employment ; 45 but, where a statute has not expressly or impliedly abolished the requirement of a proximate causal connection, it would seem that, on sound principle, the rules of proxi- mate cause remain, as of old, unshaken. 46 If, however, the legislature sees fit to abolish the defense of the con- tributory negligence of the employee, the possibility of pleading such contributory negligence as an intervening cause is gone, and the law of proximate cause is thus far affected. There is one feature of these acts which affects the basic right to maintain the action, and that is the feature dispensing with the necessity of proving the neg- ligence of the employer ; but this does not of itself make it unnecessary to show a causal connection between the employment or the violation of the statute by the em- ployer, on the one hand, and the injury, on the other. Where a statute holds an employer liable, without regard to the question of his negligence, the question of proxi- mate cause may still sometimes arise, but the question is then stripped of the troublesome possibilities of the cases that are grounded in negligence. In negligence cases, the question whether the defendant was negligent is too often confounded with the question whether there is proximity of cause and result ; but, where his liability is made abso- lute, by statute, when certain facts appear, we have one 45 See In re Loper, (Ind. 1917) vening causes sometimes assume 116 N. E. 324. considerable importance. See Bo- 46 Even with the exceedingly tana v. Joseph F. Paul Co., (1916) liberal constructions placed upon 224 Mass. 395, 113 N. E. 358. such statutes, independent inter- 40 of the clearest cases in which to see the workings of rules of causation. 47 A common type of modern legislation is the ' * civil dam- age act, ' ' permitting recovery from a liquor dealer under certain circumstances. "Civil damage acts" do not al- ways appear in just the same form, some giving relief for injury "in consequence of the intoxication," some for injury "by reason of the intoxication," some for injury "in consequence of the furnishing," and others for injury "by any intoxicated person." 48 Even when the wording of such a statute is closely scrutinized and compared with that of other similar statutes, one cannot always be sure as to possible holdings of courts thereunder, as decisions on identical statutes of this kind sometimes vary. Some of these statutes are held to dispense with all necessity of showing any proximity of cause and result, while others, sometimes worded in identically the same manner, are held to give a right of action only if proximity of causal relation is established. 49 Where the result must be shown to be proximate, the general mode of determin- ing proximity is similar to that existing under the com- mon law. 15. Proximate Cause a Question for the Jury. In gen- eral, the question whether a given result is proximate, is for the jury. "It is not a question of science or legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it." 50 This does not 47 In re Sponatski, (1915) 220 Isaacson, (1913) 178 Mich. 176, 144 Mass. 526, 108 N. E. 466, 8 N. C. N. W. 508; New v. McKechnie, C. A. 1025. (1884) 95 N. Y. 632, 47 Am. Eep. 48 See notes, 13 L. B. A. (N. 89. S.) 1158, and 50 L. B. A. (N. S.) No recovery unless intoxication 858. was proximate cause: Horn v. 49 Not necessary to show that Smith, (1875) 77 111. 381; Stecher intoxication was proximate cause v. People, (1905) 217 111. 348, 75 of injury: Bistline v. Ney, (1907) N. E. 501; Davis v. Standish, 134 la. 172, 111 N. W. 422, 13 L. (1882) 26 Hun (N. Y.) 608. B. A. (N. S.) 1158; Heikkala v. 50 Milwaukee & St. P. By. Co. CAUSE AND RESULT 41 mean, however, that the jury is absolutely unrestricted in its findings on the question whether certain results in a given case are proximate to the defendant's wrongful act. 51 The verdict of the jury as to this matter, as in re- gard to anything else, must be sustained by evidence ; and it must not be the product of mere whim or caprice. If there is no evidence upon which to base a verdict to the effect that the wrongful act was the proximate cause of the result, the trial court should instruct the jury in such a manner that a verdict finding proximity of cause and result where there can be no such proximity, will not be rendered. Neither a trial court nor an appellate court, however, can properly interfere at will with the preroga- tive of the jury in this case any more than in any other case, and it is only where the jury could not, on the evi- dence, properly find any relation of proximate cause and result that there should be a peremptory instruction or a setting aside of the verdict. CASE ILLUSTRATIONS 1. A crank shaft of plaintiff's engine broke, causing their mill to be stopped. Defendant carriers agreed to transport the shaft to the factory, where it was to be used as a pattern for a new one ; but defendants were not informed that a delay would result in a loss of profits at the mill. The shaft was so delayed by de- fendants that the new shaft reached plaintiff 's several days late, the delay causing plaintiffs' mill to remain idle for several days. Held, that profits cannot be taken into consideration at all in estimating the damages. Such consequences would not have oc- curred in the great multitude of cases of the kind ; and no notice of the special circumstances had been given to the defendants. 52 2. A contracts to sell to B an article of limited production, not easily bought in the market, but supplies B with an inferior v. Kellagg, (1876) 94 U. S. 469, 24 (1869) 14 Minn. 81, 100 Am. Dee. L. ed. 256. 199; Milwaukee & St. P. Ev. Co. 51 Johnson v. Winona, etc., R. v. Kellogg, supra. Co., (1865) 11 Minn. 296, 88 Am. 52 Hadley v. Baxendale, (1854) Dec. 83; Griggs v. Fleckenstein, 9 Exch. 341, 5 E. R. C. 502. 42 LAW OF DAMAGES article. B may recover for such loss as he has suffered in his own manufacture because of the breach ; or he may recover the difference between the contract price he paid the vendor and the price he was to receive from his own vendees. "This is a loss which springs directly from the non-fulfilment of the con- tract." 58 3. Vendor fails to deliver an engine to vendee within the time agreed upon. "The proper rule for estimating this portion of the damages in the present case was, to ascertain what would have been a fair price to pay for the use of the engine and ma- chinery, in view of all the hazards and chances of the business. ' ' Speculative profits are not allowed. "The damages must be such as may fairly be supposed to have entered into the contem- plation of the parties when they made the contract ; that is, must be such as might naturally be expected to follow its violation; and they must be certain, both in their nature and in respect to the cause from which they proceed. ' ' 54 4. Defendants contracted to supply skins to plaintiff. At the time of making the contract, plaintiff informed defendants that he was about to complete or had completed a contract with a cus- tomer in Paris, and that he would use the skins to fulfill such contract. Defendants broke contract by not supplying skins. Plaintiff was unable to buy skins to fulfill his Paris contract. Plaintiff may recover lost profits. Defendants knew of the sub contract, so that the profits were in the contemplation of the par- ties at the time of making the contract. Plaintiff could not have avoided the damage, as he could not purchase similar goods. 55 5. Defendant contracted to deliver to plaintiff 100,000 pounds of Minie bullets, 58-calibre, U. S. Rifle Musket, knowing that plaintiff was purchasing the bullets to fulfill an existing contract with the State of Ohio. The bullets as specified were not deliv- ered, but bullets of all calibres, useless for the purpose intended, were supplied instead. Plaintiff recovers the profits that would have accrued to him upon fulfilling the contract of re-sale, and also the transportation charges plaintiff has paid on the goods. "The general rule is, that the party injured by a breach of a 53 McHose v. Fulmer, (1873) 55 Grebert-Borgnis v. Nugent, 73 Pa. 365. (1885) L. B. 15 Q. B. 85. 54 Griffin v. Colver, (1858) 16 N. Y. 489, 69 Am. Dec. 718. CAUSE AND RESULT 43 contract, is entitled to recover all his damages, including gains prevented as well as losses sustained, provided they are certain, and such as might naturally be expected to follow the breach." Profits on re-sale, and transportation charges, were in the con- templation of the parties at the time of making this contract. 50 6. A wool dealer delivered to a telegraph company a message to Toland, one of his agents, in cipher, without telling the agent the meaning of its contents or the possible effect of an incorrect transmission. The message was erroneously made so to read as to request Toland to buy 500,000 pounds of wool. In compliance therewith, the agent actually bought 300,000 pounds, on which the dealer lost $20,000. The dealer can recover of the telegraph company only such amount as he paid for the transmission of the message. ' ' According to any understanding which the telegraph company and its agents had, or which the plaintiff could possibly have supposed that they had, of the contract between these par- ties, the damages which the plaintiff seeks to recover in this action, for losses upon wool purchased by Toland, were not such as could reasonably be considered, either as arising, according to the usual course of things, from the supposed breach of the contract itself, or as having been in the contemplation of both parties, when they made the contract, as a probable result of a breach of it." 57 7. Plaintiff contracted to furnish a church with pews by a cer- tain date, and further agreed to pay $10 per day as liquidated damages for each day the pews were delayed beyond the time stated. He shipped the pews by defendant's railroad, giving notice of his contract with the church, including the provision for li- quidated damages. Defendant broke its contract by being 24 days late in completing the transportation of the pews. In the settlement with the church, plaintiff allowed a deduction of $180 for the delay. Plaintiff recovers the $180 of defendant railroad. The loss complained of was a natural consequence of the breach. 58 8. Defendant sold plaintiff a cow, warranting her free from foot and mouth disease, a malady the cow really had at the time of the sale. Plaintiff, being a farmer, placed the cow with his 56 Messmore v. New York Shot 58 Illinois Central E. Co. v. & Lead Co., (1869) 40 N. Y. 422. Southern Seating, etc., Co., (1900) 57 Primrose v. Western Union 104 Tenn. 568, 58 S. W. 303, 50 L. Tel. Co., (1894) 154 U. S. 1, 38 L. B. A. 729. ed. 883, 14 Sup. Ct. 1098. 44 LAW OF DAMAGES other cows, and they contracted the disease. The defendant is liable, not only for the loss of the cow sold, but also for the loss of the other cows, if he knew that plaintiff was a farmer, so that he would be likely to place the cow with other cows. 59 9. Defendent contracted to store plaintiff's goods at Kings- land Road, but deposited them in another place, where they were destroyed by fire. In plaintiff's policy of insurance on the goods, Kingsland Road was specified as the place of deposit, and so the benefit of the insurance was lost. Plaintiff can recover the amount of this loss. The damage is not too remote. The bare possibility that the loss would have occurred anyway if the wrongful act had never been done, cannot be set up by the de- fendant. 60 10. ' ' The plaintiffs took tickets to be conveyed from the Wim- bleton station of the defendant's railway to Hampton Court. It so happened that the train did not go to Hampton Court, and the plaintiffs were taken on to Esher Station, which increased the distance which they would have to go from the railway station to their home by two or three miles. ' ' Held, that plaintiffs can re- cover for their inconvenience, but not for the illness of the fe- male plaintiff, resulting from exposure to cold, which was inci- dent to the walk from Esher to Hampton. The illness "is an effect of the breach of contract in a certain sense, but removed one stage; it is not the primary but the secondary consequence of it." 61 59 Smith v. Green, (1875) L. western By., (1875) L. B. 10 Q. B. B. 1 C. P. Div. 92, 23 E. B. C. 566. 111. The holding that the illness Accord: Sherrod v. Langdon, was too remote to admit of re- (1866) 21 Iowa 518: "The ground covery, seems unsound. As is said of the recovery is, that the loss in McNamara v. Clintonville, actually happened, while defend- (1885) 62 Wis. 207, 22 N. W. 472, ants' wrongful act was in opera- 51 Am. Bep. 722, the Hobbs case is tion a loss attributable to their "severely criticised and narrowly wrong or fraudulent act, and it is limited, if not entirely overruled" not for them to say, we did not by McMahon v. Field, (1881) 7 Q. know plaintiffs had other sheep, B. Div. 591. In the latter case, and hence did not contemplate or plaintiff contracted for room for undertake to be liable for so great his horses in defendant 's barn. De- ft loss." fendant nevertheless rented the 60 Lillie v. Doubleday, (1881) same space to a third person, who L. R. 7 Q. B. Div. 510. turned out plaintiff's horses, which 63 Hobbs v. London & South- resulted in their taking cold before CAUSE AND RESULT 45 11. Defendants contracted to name to plaintiff a good stock- broker, but negligently named a broker who was an undischarged bankrupt and. was dishonest. Plaintiff, relying upon defend- ant 's statement, sent sums of money to the broker for investment. The broker misappropriated these sums. Defendants are liable for plaintiff's loss. The intervention of the crime which directly caused the damage, does not render the damages too remote. 62 12. Defendant commits a battery upon plaintiff, causing the latter to become subject to fits. The fits are a direct result of the battery. 63 13. In a collision between plaintiff on a bicycle, and the auto- mobile of the defendant, plaintiff received slight injuries. Four or five weeks later, he contracted typhoid fever, and it appeared that food, water, and air were the only media by which typhoid could be communicated. A physician testified that, in his opin- ion, there was a connection between the accident and the typhoid, but did not explain the connection. The evidence does not sus- tain a verdict that takes the typhoid into account. 64 14. A threw a lighted squib into a crowd. B, to prevent in- jury to himself and to the goods of X, threw the squib away, to- ward C, who, to save hiirself arid his goods, also threw it away, striking D, bursting and putting out his eye. A must respond in damages to D. 65 plaintiff could provide other shel- nor probable result of physical in- ter for them. Defendant was held jury such as plaintiff sustained, and liable for the injury to the horses, the only evidence in the case is on the ground that their expulsion that referred to of Dr. Hosmer to and consequent injury were such the effect that there was a connec- results of the breach as should tion between plaintiff's sickness have been contemplated by defend- and the accident; that he consid- ant as probable results. ered this all of the time; but he 62 De la Bere v. Pearson, Lim- does not say that the injury caused ited, .(1907) [1908] 1 K. B. 280, 1 the disease, and he does not ex- B. R. C. 21, 77 L. J. K. B. N. S. plain what he means by connection 380, 98 L. T. N. S. 71, 2-4 Times between the illness and the injury. L. B. 120. The connection between the dis- 63 Sloan v. Edwards, (1883) 61 ease and the injuries, in order to Md. 89. form a basis for damages, cannot 64 Slack v. Joyce, (1916) 163 be left to surmise or conjecture, Wis. 567, 158 N. W. 310. "It ap- but must rest upon proof." pears from the evidence that ty- 65 Scott v. Shepherd, (1773) 2 phoid fever is neither the natural W. Bl. 892, 96 Eng. Eepr. 525, 3 46 LAW OF DAMAGES 15. X railway company sold A a ticket purporting to entitle holder to travel over certain railroads, including that of the Y railway company, from Omaha to New York. Y had given X no authority to sell such a ticket. Y refused to honor the ticket, and ejected A with unjustifiably violent and excessive force, for which A recovered judgment against Y for $7,000. Y spent over $13,000 in defense of the action brought by A. Y cannot recover from X its expenditures in connection with A's action. Y had a simple remedy, which it had applied namely, to eject A. As between the two companies, that closed the matter. If the ejec- tion was accompanied by unnecessary force, it was upon Y's re- sponsibility, and X cannot be held responsible. 66 16. Defendant railroad company's servant directed plaintiff, a passenger, to a wrong train. Finding that he was being car- ried in a wrong direction, plaintiff tried to alight while the train was in motion, and was injured. Held, that the misdirection by the railroad company was not a proximate cause of his injuries. 67 17. Plaintiff was mistakenly directed by defendant railway company's servants to leave the train at a point some distance from the station at which he intended to alight. It was night, and plaintiff, in attempting to make his way to the station, fell into a cattle-guard and was seriously injured. Held, that de- fendant is not liable. Defendant's wrong was not the proximate cause of the injury of plaintiff. The injury is held to be "the result of pure accident. ' ' 6S 18. Defendant's electric car was coming down-grade, at a speed of 40 to 50 miles an hour, swaying from side to side. Plaintiff, in his automobile, was coming toward defendant's car, in the opposite direction. The trolley wheel of defendant's car left the wire, and was thrown against the left forward wheel of Wils. (K. B.) 403, 95 Eng. Bepr. but it is to be noticed that, in the 1124. latter case, a defective platform, 66 Pennsylvania E. Co. v. Wa- on which plaintiff alighted, is in- bash, etc., R. Co., (1895) 157 U. 8. volved. 225, 39 L. ed. 682, 15 Sup. Ct. 576. 68 Lewis v. Flint & Pere Mar- 67 Chesapeake & Ohio By. Co. quette By. Co., (1884) 54 Mi:h. 55, v. Wills, (1910) 111 Va. 32, 68 S. 19 N. W. 744, 52 Am. Bep. 790. A E. 395, 32 L. B. A. (N. S.) 280. recent case in accord is Brown v. Seemingly contra: Newcomb v. Linvillo River Ry. Co., (N. Car. New York Central & H. R. R. Co., 1917) 94 S. E. 431. (1904) 182 Mo. 687, 81 S. W. 1069; CAUSE AND RESULT 47 the automobile, causing it to turn sharply to the right, toward a bank. The plaintiff, expecting that his machine would "turn turtle," jumped out and was injured. Held, that this is a case for the jury. 69 19. Defendant's car, on which plaintiff was a passenger, par- tially left the track and was approaching a bridge over a river. Plaintiff leaped from the car just before the car reached the bridge, and was injured. The leap, if a reasonable act, such as would have been done by a person of ordinary prudence, does not break causal connection between the derailment and plain- tiff's injury. 70 20. Plaintiff's blind horse, harnessed to a sleigh, became fright- ened, and plaintiff, on account of the presence of a large pile of ashes left in the street by the defendant city and the presence also of a loaded wagon coming in the opposite direction, had to guide his horse within the twelve feet remaining between the wagon and the curb. Plaintiff was unable to guide his horse with precision, and so the cross-bar of his sleigh struck a hydrant- nozzle, plaintiff being thrown against the hydrant and injured. Held, that, the heap of ashes was, at most, only one of several proximate causes of the accident, and that it cannot be said -that it was the cause without which it would not have occurred. 71 21. Defendant's chauffeur left defendant's automobile on an incline, with engine stopped and brake set. A 12-year old boy, passing by, rattled the brake, releasing it. As a result, the auto- mobile struck and injured plaintiff. "The proximate cause of the injury was the interference of the boy, over whom the de- fendant had no control, and for whose act it was not respon- sible." 72 22. A railroad company's night watchman at a freight-house was supposed to be required to see that all doors were bolted, but he was not informed of this duty. A doorman of the com- pany had failed to bolt a certain door, through which a tres- passer later escaped, and, while doing so, shot the night watch- 69 Hull v. Berkshire St. By. 71 Ring v. City of Cohoes, Co., (1914) 217 Mass. 361, 104 N. (1879) 77 N. Y. 83, 33 Am. Eep. E. 747. 574. 70 La Prelle v. Fordyce, (1893) 72 Rhad v. Duquesne Light Co., 4 Tex. Civ. App. 391, 23 S. W. 453, (1917) 255 Pa. 409, 100 Atl. 262, 6 Am. Neg. Gas. 658. L. E. A. 1917 D 864. 48 LAW OF DAMAGES man. Held, that the master, the company, is not liable. The failure of the doorman to bolt the door was merely a condition making entrance into the building less difficult. The cause of the injury to the night watchman was the unrelated criminal act of the trespasser. 73 23. A stranger entered the office of the defendant, and tried to kill the defendant by means of a bomb. The defendant shielded himself by holding the plaintiff, his clerk, between himself and the exploding bomb. Plaintiff was thereby injured. Held, that defendant is not liable. The proximate cause of the injury to the plaintiff is held to be the wrongful act of the stranger, and not the act of the defendant. 74 24. Defendant, a balloonist, descended into plaintiff's garden, drawing to him a crowd, who trod upon the plants of plaintiff. Held, that plaintiff may recover for the damage done by the bal- loon and also that done by the crowd. These were all natural and probable results. 75 25. Defendant negligently leaves explosives where they are easily reached by children. Not being old enough fully to com- prehend the danger, several children, including the plaintiff, play with the explosive, by which plaintiff and others are seriously injured. Defendant is liable. Although an intervening cause brought about the injury, such cause was set in motion by the defendant's negligence. 76 26. Defendant's fowls were in the road, perhaps wrongfully. A dog belonging to a third person frightened one of the fowls, causing it to fly into the spokes of the bicycle of plaintiff, who was riding along the road. Plaintiff and his bicycle were in- jured by the resulting fall. Held, that defendant is not liable. "The negligence, if any, of allowing the fowl to be there was not connected with the damage. ' ' 77 73 Fraser v. Chicago, R. I. & R. Co., (1905) 95 Minn. 477, 104 P. Ry. Co., (Kan. 1917) 165 Pac. N. W. 443, 70 L. R. A. 503, 111 831. Am. St. Rep. 483, 5 Ann. Gas. 498; 74 Laidlaw v. Sage, (1899) 158 Folsom-Morris Coal Mining Co. v. N. Y. 73, 52 N. E. 679, 44 L. R. A. DeVork, (Okla. 1916) 160 Pac. 64. 216. 77 Hadwell v. Righton, [1907] 75 Guille v. Swan, (1822) 19 2 K. B. 345, 5 B. R. C. 115, 76 L. Johns. (N. Y.) 381, 10 Am. Dec. J. K. B. N. S. 891, 71 J. P. 499, 97 234. L. T. N. S. 133, 23 Times L. R. 76 Mattson v. Minnesota, etc- 548, 5 L. G. R. 881. CAUSE AND BESULT 49 27. The driver of defendant's horse ear whipped his horses, causing the car to give a sudden bounce. Plaintiff's wife, a pas- senger, was jolted off the platform of the car, alighting on her feet unhurt. A moment afterward, she was struck by a runaway horse, knocked down, and injured. Held, that the injuries are not a proximate result of her being jolted from the car. "The jolting from the car simply landed her on her feet, and inflicted no injury. But another agency intervened, which was entirely independent of any act of the defendant, and that agency alone inflicted the injury in question. ' ' 7S 28. Defendant knowingly kept a vicious dog, upon which plaintiff accidentally stepped. The dog severely bit and lacer- ated plaintiff's leg. Defendant is liable. Plaintiff's inadver- tance in stepping upon the dog did not constitute an efficient intervening cause, so as to break the causal connection between the negligence of the defendant in not restraining the animal, and the injury. 79 29. Plaintiff, for no justifiable purpose, kicked defendant's dog, which, in consequence of the kick, bit plaintiff. "If the plaintiff wantonly irritated and aggravated the dog, and the dog bit him, in repelling his aggression, and not from a mischievous propensity, * * * then the plaintiff should not be allowed to recover for damages caused by his own wrong. ' ' 80 30. Defendant negligently burned a canvas cover used to pro- tect plaintiff's growing pineapple plants and fruit from injury by cold and frost. As a result, the plants and fruit were exposed to cold weather and injured. A declaration setting up such facts is sufficient on demurrer. "Results that follow in ordinary, 78 South-Side Passenger By. son's treading on the dog's toes, Co. v. Trieh, (1887) 117 Pa. 390, for it was owing to his not hang- 11 Atl. 627, 2 Am. St. Eep. 672. ing the dog on the first notice, and 79 Fake v. Addicks, (1890) 45 the safety of the king's subjects Minn. 37, 47 N. W. 450, 22 Am. St. is not afterwards to be endan- Rep. 716; referring to Smith v. gered." See note on "Keeping Pelah, (1745) 2 Str. 1264, 93 Eng. of animal as prorximate cause of Repr. 1171, as saying "that if a injury," 2 B. R. C. 29. See also dog has once bit a man, and the Muller v. McKesson, (1878) 73 N. owner thereof with notice keeps Y. 195, 29 Am. Rep. 123, which re- the dog, and lets him go about or views a number of cases, lie at his door, an action lies at 80 Keightlinger v. Egan, (1872) the suit of the person who is bit, 65 HI. 235. though it happened by such per- Bauer Dam. 4 50 LAW OF DAMAGES natural, continuous sequence from a negligent act or omission, and are not produced by an independent efficient cause, are proximate results of the negligence, and for such results the negligent party is liable in damages, even though the particular results that did follow were not foreseen." 81 31. Goods are delivered to a common carrier for transporta- tion. Through the carrier's negligence, they are delayed, by reason of which they are subjected to a sudden flood while in transit, and are destroyed or damaged. The carrier is liable. "Now, while it is true that defendant could not have anticipated this particular flood and could not have foreseen that its negli- gent delay in transportation would subject the goods to such a danger, yet it is now apparent that such delay did subject the goods to the danger, and that but for the delay that [they] would not have been destroyed ; and defendant should have foreseen, as any reasonable person could foresee, that the negligent delay would extend the time during which the goods would be liable in the hands of the carrier to be overtaken by some such casualty, and would therefore increase the peril that the goods should be thus lost to the shipper." 82 32. Defendant, carrier of logs, negligently delayed in the transportation of plaintiff's logs. Unusually early cold weather came, freezing them in the ice of the river in which they had been placed. Freshets in December and in the spring carried them down the river and out to sea. Held, that defendant 's neg- ligence was the proximate cause of the loss, that even the unusu- ally early freeze was not an independent intervening cause, and that unusually large freshets were not such cause, if the loss would likewise have occurred during an ordinary freshet. 83 81 Benedict Pineapple Co. v. 83 Marsh v. Great Northern Atlantic Coast Line E. Co., (1908) Paper Co., (1906) 101 Me. 489, 64 55 Fla. 514, 46 So. 732, 20 L. E. A. Atl. 844. It is to be noticed that (N. S.) 92. the court lays stress upon the fact 82 Green-Wheeler Shoe Co. v. that, although unusual, the early Chicago, E. I. & P. Ey. Co., (1906) freeze was not so unusual that the 130 la. 123, 106 N. W. 498, 5 L. possibility of it should have been E. A. (N. S.) 882. Contra: Denny "eliminated from consideration by v. New York Central E. Co., (1859) a prudent person who had under- 13 Gray (Mass.) 481, 74 Am. Dec. taken a work of this magnitude." 645. Authority on the point is "Climatic conditions are so f re- well divided. quently unusual that this fact CAUSE AND RESULT 51 33. Defendant, the owner of a steamboat, contracted to carry plaintiff's horses, which he later lost by the sinking of his vessel by running it upon the mast of a schooner recently sunk in a squall. Defendant, under the extraordinary liability of a com- mon carrier, is liable. In this case, there is no proximate cause intervening between defendant's acts in the course of carriage and the loss. 84 34. Defendant's steamer negligently pumped, or allowed to drip, into a harbor, large quantities of highly combustible fuel oil, which collected under a wharf, between vessels and the wharf. As the tide began to come in, the mass of oil, matted together with debris, moved partially out from under the wharf and sur- rounded the steel bark of plaintiff. In some manner, probably from a burning cigar, a spark, or a live coal, the oil on the water became ignited, causing the wharf to burn, and damaging plain- tiff's vessel. The negligence of defendant's steamer was the proximate cause of the damage. 85 35. Defendant railroad company's engine set fire to grass in the right of way. A high wind carried the fire toward the barn of X. Y helped X to remove his horses from the barn ; but the fire, being driven to the barn more quickly than was expected, severely injured Y before he succeeded in escaping from the building. Defendant is liable to Y. Its wrongful act is the proximate cause of Y's injury. 86 36. Fire negligently set by defendant upon property of a third person, burned across a large area to plaintiff's property and consumed it. Held, that defendant's negligence was not the proximate cause of plaintiff's loss, as the property of other per- sons intervened, and the condition of the intervening properties intervened as a cause. It was further held that the question of proximate cause was for the court. 87 must be anticipated and guarded (1910) 176 Fed. 890, 100 C, C. A. against." See also Cumberland, 360, 30 L. R. A. (N. S.) 1210. Cf. etc., Co. v. Stambaugh, (1910) 137 Hoag v. Lake Shore, etc., R. Co., Ky. 528, 126 S. W. 106, 31 L. R. A. (1877) 85 Pa. 293, 27 Am. Rep. (N. S.) 1131, and L. R. A. note 653. thereto. 86 Liming v. Illinois Central R. 84 Merritt v. Earle, (1864) 29 Co., (1890) 81 la. 246, 47 N. W. N. Y. 115, 26 Am. Dec. 292. 66. 85 Societe Nouvelle D'Arme- 87 Hoffman v. King, (1899) 160 ment v. United States S. S. Co., N. Y. 618, 55 N. E. 401, 46 L. R. A. 52 LAW OF DAMAGES 37. Defendants set fire to grass on their own property. Ow- ing to a change in the wind, defendants' buildings burned, and also plaintiff's, the fire seeming to have blown to them from de- fendant's buildings, a quarter of a mile away. Held, that the question of proximate cause is for the jury. 88 38. The fire department was unable to put out a fire in plain- tiff's house, because defendant railroad company had wrongfully occupied and extended a river bank, thus preventing the depart- ment from obtaining water from the river. Held, that defend- ant is not liable for plaintiff's loss by fire. Defendant's acts are said to "have no connection with the fire, nor with the hose or other apparatus of the fire companies. They are independent acts, and their influence in the destruction of plaintiff's prop- erty is too remote to be made the basis of recovery." 89 39. Plaintiff had wood deposited on a levee, accessible only by a bridge maintained by defendant city. The bridge became im- passable, and the defendant negligently failed to repair it. Plaintiff was therefore unable to remove its wood, which was washed away by a flood. Defendant is held not liable for the loss. "All that can be said is, that defendants ' negligence caused plaintiff to delay removing the wood ; the delay exposed the wood to the flood, whereby it was lost. Plaintiff's damage, then, was not the proximate consequence of the acts of defendant com- plained of, but resulting from a remote consequence joined with another circumstance, the flood." 90 40. Defendant town failed to keep its highway in repair. Plaintiff, using the highway, because of the defects therein, went from it into an adjoining field, where he was injured. Defend- ant is not liable. The injury is not a proximate result of de- fendant's negligence. 91 41. A city failed to light a bridge. Amid the darkness and 672, 73 Am. St. Rep. 715; Van, J., 88 Nail v. Taylor, (1910) 247 and Parker, C. J., dissenting. This 111. 580, 93 N. E. 359. case is not generally approved or 89 Bosch v. Burlington & Mis- followed outside New York. In aouri R. Co., (1876) 44 la, 402, 24 Illinois Central R. Co. v. Bailey, Am. Rep. 754. (1906) 222 HI. 480, 78 N. E. 833, 90 Dubuque Wood & Coal As- the facts were similar, and a judg- sociation v. Dubuque, (1870) 30 ment for the plaintiff was affirmed, la. 176. the court saying that a prima facie 91 Tisdale v. Norton, (1844) 8 case was made out. Mete. (Mass.) 388. CAUSE AND RESULT 53 some steam from a locomotive, so dense that he could not see ahead, plaintiff's chauffeur ran plaintiff's automobile into a girder dividing the driveway on the bridge. Held, that defend- ant's negligence, if any, was not the proximate cause of the in- jury to the automobile. 92 42. Defendant city negligently permitted a hole to remain in a street. A wagon-wheel fell into the hole, causing a doubletree to become unfastened and to fall against one of the team of horses hitched to the wagon, frightening the team and causing them to collide with the plaintiff. It cannot be said as a matter of law that the defendant is not liable for plaintiff's injuries. The court cannot, in this case, rule that, as a matter of law, the negligence of the city is not the proximate cause of the injuries to the plaintiff. 93 43. Defendant village negligently maintained a high walk without railings. Plaintiff, without negligence on his part, stepped off the walk, and was injured. He already had a predis- position to inflammatory rheumatism. Because of such predis- position, his injury may have been aggravated and prolonged. The jury has a right to include in its verdict such increased or additional damages. 94 44. Defendant, a school boy, gave the shin of plaintiff, another school boy, a slight kick. Plaintiff's leg had been injured 50 days earlier, but was now recovering. The kick revivified mi- crobes already in the leg and caused a destruction of the bone through the activity of the microbes, so that plaintiff would never again be able to use the leg. Defendant is liable. ' ' The wrong- 92 Games v. New York, (1915) healthy, were liable to travel upon 215 N. Y. 533, 109 N. E. 594, L. E. the walk. Under ordinary circum- A. 1917 C 203. stances the infirm and diseased 93 Ft. Worth v. Patterson, would have no difficulty in pass- (Tex. 1917) 196 S. W. 251. ing over the walk without incur- 94 McNamara v. Clintonville, ring injury. But the plaintiff, (1885) 62 Wis. 207, 22 N. W. 472, under the circumstances stated, as 51 Am. Eep. 722. "It is not found by the jury, incurred the in- likely that the officers of the vil- jury without any fault on his part, lage actually contemplated that The mere fact that he was more the injury in question would re- susceptible to serious results from suit from the defect in the walk. the injury by reason of the pres- They must have knorwn, however, ence of disease, did not prevent that all classes of people, infirm as him from recovering the damages well as firm, diseased as well as he had actually sustained." 54 LAW OF DAMAGES doer is liable for all injuries resulting directly from the wrong- ful act, whether they could or could not have been foreseen by him." 95 45. The servants of defendant railway company directed the plaintiffs to leave defendant's train, in the night, three miles from Mauston, their destination, telling them that it was Maus- ton. Female plaintiff was then pregnant. Plaintiffs had to walk to Mauston, by reason of which female plaintiff became very ill and had a miscarriage. Defendant is liable for these injuries, even though it did not know of the pregnancy. 96 46. An employe, at the time of receiving a severe personal in- jury through the negligence of defendant, was afflicted with a progressive incurable disease, which had not yet advanced to the stage of producing disability. The injury greatly aggravated the disease, so that the employee died in less than a month after his injury. Defendant is liable under the common law. 97 47. Defendant company negligently permitted its sleeping car 95 Vosburg v. Putney, (1890) 78 Wis. 85, 80 Wis. 523, 47 N. W. 99, 50 N. W. 403, 14 L. B. A. 226, 27 Am. St. Eep. 47. 96 Brown v. Chicago, M. & St. P. By. Co., (1882) 54 Wis. 342, 11 N. W. 356, 41 Am. Bep. 41: "The defendant is not excused because it did not know the state of health of Mrs. Brown, and is equally re- sponsible for the consequences of the walk as though its employees had full knowledge of that fact. * * * Upon the findings of the jury in this case, it appears that the defendant was guilty of wrong in putting the plaintiffs off the cars at the place they did; that in order to protect themselves from the effects of such wrong they made the walk to Mauston; that in making such walk they were guilty of no negligence, but were compelled to make it on account of the defendant's wrongful act; and that, on account of the peculiar state of health of Mrs. Brown at the time, she was injured by such walk. There was no intervening independent cause of the injury, other than the act of the defend- ant. All the acts done by the plaintiffs, and from which the in- jury flowed, were rightful on their part, and compelled by the act of the defendant. We think, there- fore, it must be held that the in- jury to Mrs. Brown was the direct result of the defendant's negli- gence, and that such negligence was the proximate and not the remote cause of the injury. * * * We can see no reason why the defend- ant is not equally liable for an in- jury sustained by a person who is placed in a dangerous position, whether the injury is the imme- diate result of a wrongful act, or results from the act of the party in endeavoring to escape from the immediate danger." 97 In re Bowers, (Ind. 1917) 116 N. E. 842. CAUSE AND RESULT 55 to catch fire, because of which the plaintiff, a female passenger, then in a state of health in which she was very susceptible to in- jury b}' exposure, was compelled to leave the car scantily clad, on a cold night. Serious functional disorders resulted, leading to a long illness. Held, that defendant was not liable for the in- juries to plaintiff's health, as they were not a proximate result of defendant's negligence. 98 48. Plaintiff's intestate, while so drunk as to be physically and mentally incapable of taking care of himself, was ejected from defendant's train, in a cut, with ditches, banks, and fences on the sides of the track. He was killed by a later train. De- fendant is liable. The ejection, and not the intestate's drunk- enness, is the proximate cause of his death." 49. Plaintiff, so drunk as to be almost unconscious, was ejected by defendant from its train, into deep snow, when the tempera- ture was 8 or 10 degrees below zero. As a result, parts of plain- tiff's body were frozen, necessitating several amputations. De- 98 Pullman Palace Car Co. v. Baxker, (1878) 4 Colo. 344, 34 Am. Rep. 89. The devious and dubious route by which the court arrived at this conclusion is worthy of no- tice. In the court's opinion, it is actually argued with seriousness that exposure in her then condition intervened as a cause, and that the defendant, having no notice of such condition, could not be held liable for a result af which this unknown state of health was an intervening cause! The case is sustained neither by sound legal principle nor by common sense. As the writer has said in an article in 83 Cent. L. J. 148 (150), "Happily, this holding, making it the duty of every female passenger to tell the brakeman or conductor of any dis- order she may at the moment have, is not generally law." More con- sonant with justice and principle are the following cases contra: Brown v. Chicago, M. & St. P. Ry. Co., supra, denouncing the Barker case as being "unsustained by authority, ' ' and ' ' supported by the principles of neither law nor humanity;" and Mann Boudoir Car Co. v. Dupre, (1893) 54 Fed. 646, 4 C. C. A. 540, 21 L. R. A. 289. 99 Louisville & N. R. Co. v. Ellis' Adm'x, (1895) 97 Ky. 330, 30 S. W. 979. Not so where con- tinued presence of deceased on train would have imperiled other passengers and his condition was not such as indicated to the train crew that he was incapable of tak- ing care of himself, since, in such a case, the ejection is necessary in discharge of the carrier's duty to passengers, and "the law does not exact care and precaution against the death of one from re- mote causes, or self-inflicted, whose conduct has afforded legal grounds for his expulsion." Louis- ville & N. R. Co. v. Logan, (1889) 88 Ky. 232, 10 S. W. 655, 3 L. R. A. 80, 21 Am. St. Rep. 332, 8 Am. Neg. Gas. 294. 56 LAW OF DAMAGES fendant is liable. The ejection of plaintiff, under the circum- stances, was the proximate cause of his injuries. 100 50. Defendant 's train was negligently run over hose which was being used to put out a fire in plaintiff's factory. By reason of the consequent cutting off of the water supply, plaintiff 's factory was destroyed. Defendant may be held liable. The advantage of which plaintiff was deprived was immediate. Defendant's act was the direct and efficient cause of the loss. 101 51. Defendant's train blocked a crossing, keeping plaintiff ex- posed to the elements, by reason of which he became ill. Defend- ant is held liable. 102 52. Plaintiff, for more than half an hour, was detained by de- fendant 's train on a crossing. Then a second engine approached and blew off steam, frightening plaintiff's horse, so that it ran away, to the injury of plaintiff's person, horse, buggy and har- ness. The obstruction of the crossing is not the proximate cause of the injuries. 103 53. Defendant railroad company kept its crossing blocked for 30 or 40 minutes, keeping a physician from attending plaintiff promptly during childbirth, although the physician requested defendant's employees to open the crossing. Plaintiff's suffer- ing was greatly prolonged, and the physician found it necessary to adopt, in delivering plaintiff of the child, a method attended by laceration. Defendant is liable for plaintiff's suffering and injury, its negligence being the proximate cause thereof. It is not necessary that defendant 's servants should have contemplated that this particular result would ensue ; it is sufficient that they ought to have anticipated that some traveler might be detained, and that injury therefrom might result to the traveler or to some one else. 104 54. Defendant's excursion train blocked a crossing for half an hour to an hour, just as the sun was setting, detaining plain- tiff and her daughter. Negro passengers stepped off at the 100 Louisville, C. & L. B. Co. Co. v. Durfee, (1891) 69 Miss. 439, v. Sullivan, (1884) 81 Ky. 624, 50 13 So. 697. Am. Bep. 186, 8 Am. Neg. Gas. 103 Stanton v. Louisville & N. 286. B. Co., (1891) 91 Ala. 382, 8 So. 101 Metallic Compression Cast- 798, 11 Am. Neg. Gas. 66. ing Co. v. Fitchburg E. Co., (1872) 104 Terry v. New Orleans, etc., 109 Mass. 277, 12 Am. Eep. 689. E. Co., (1913) 103 Miss. 679, 60 So. 102 Louisville, N. O. & T. Ey. 729, 44 L. E. A. (N. S.) 1069. CAUSE AND RESULT 57 crossing, swore, and used obscene language, fought, and fired a pistol, terrorizing plaintiff and her little girl. As a result of the delay, plaintiff had to drive home in the dark. Becoming alarmed at the danger of turning over, she jumped from the buggy, injuring her knee. ' ' The negligence was not the proxi- mate cause of either injury complained of." 105 55. Defendant's train partly blocked a crossing. At the in- vitation of defendant's flagman, plaintiff tried to drive his gen- tle horse across the small part of the crossing remaining open. The horse shied, causing the buggy to collide with the rear end of the train, throwing out and injuring plaintiff. Defendant is liable. ' ' The shying of the horse cannot be regarded as the sole proximate cause. The obstruction which had been placed in the highway directly contributed to the accident, and the jury was justified in so finding. " l 6 56. Plaintiff was riding on horseback on a road, which, at its intersection with defendant's railroad, was deeply cut, as was also the railroad, preventing persons on the road from seeing trains before they were within a few feet of the rails. Defend- ant, neglecting its statutory duty, failed to give a signal of the approach of its train, as required by statute, as a result of which plaintiff was within 15 or 20 feet of the train before she saw it. Her horse, becoming frightened, ran with her 100 yards or more, and threw her in turning a curve, and dragged her a short dis- tance, injuring her severely. The appellate court refused to in- terfere with a verdict for plaintiff, as these are facts from which the jury was entitled to find that the negligence was the proxi- mate cause of the injury. 107 57. While plaintiff was riding on horseback on a road parallel to the defendant's railroad, defendant's train approached a nearby crossing without giving the signals required by statute. Plaintiff's horse became frightened at the train, which was going in the same direction, ran away, and attempted to cross the rail- road at a crossing in front of the train. The horse collided with 105 Shields v. Louisville & N. 107 Illinois Central B. Co. v. R. Co., (1895) 97 Ky. 103, 29 S. W. Mizell, (1896) 100 Ky. 235, 38 S. 978, 27 L. E. A. 680. W. 5. 106 Chicago & N. W. R. Co. v. Prescott, (1893) 59 Fed. 237, 8 C. C. A. 109, 23 L. R. A. 654. 58 LAW OF DAMAGES the train, and plaintiff was thrown off and injured by the colli- sion. Defendant is not liable. Defendant's statutory negligence was not the proximate cause of plaintiff's injury. "It was not the failure to give the crossing signals that caused the horse to run off, or that resulted in the injury to Conway. " 1 8 58. Defendants wrongfully and maliciously sued out a writ of attachment against goods of plaintiff. Held, that, in the partic- ular case, damages could be recovered for the expenditures ac- tually made in the defense of the suit, the depreciation of the value of the stock on which the wrongful levy had been made, and also the injury to the business of the plaintiff and his credit and financial reputation. "In actions on the case the party in- jured may recover from the guilty party for all the direct and actual damages of the wrongful act and the consequential dam- ages flowing therefrom. The injured party is entitled to recover the actual damages and such as are the direct and natural conse- quences of the tortious act." 109 59. Plaintiff, a brakeman, alighting from his train, slipped on ice, was overbalanced by a hot box cooler which he was carrying, and was struck by defendant's switch engine, which was being negligently managed. Defendant's negligence was the proxi- mate cause of plaintiff's injury. 110 60. Plaintiff, a passenger awaiting a train at a railroad sta- tion of defendant company, was struck by the dead body of a 108 Conway v. Louisville & N. County, 82 Kan. 708, 109 Pac. E. Co., (1909) 135 Ky. 229, 119 S. 162). The defendant's negligence W. 206. See able dissenting opinion was proximate in point of time of Hobson, J. because the negligently managed 109 Lawrence v. Hagerman engine struck the plaintiff after he (1870) 56 111. 68, 8 Am. Eep. 674. became overbalanced,, and was 110 Eockhold v. Chicago, E. I. proximate in causal relation be- & P. Ey. Co., (1916) 97 Kan. 715, cause, without it, becoming over- 156 Pac. 775: "The defendant's balanced would have been without negligence was clearly the prox- injurious consequence. The sub- imate cause of the injury. The ject is sufficiently covered by two two causes contributing to the decisions of this court in which ac- plaintiff's injury were not distinct cidental slipping of the plaintiff and independent of each other combined with negligence of the (Eailway Co. v. Columbia, 65 Kan. defendant produced injury. City 390, 69 Pac. 388, 58 L. E. A. 399), of Atchison v. King, 9 Kan. 550, but were related to each other in and Barnett v. Cement Co., 91 Kan. their operation (Hosier v. Butler 719, 139 Pac. 484." 59 woman who had just been struck and killed by defendant's loco- motive. There was some evidence indicating that defendant's engineer had rung the bell or blown the whistle at the crossing at which the woman was killed. Held, that defendant was not liable for plaintiff's injury. 111 61. A drove his automobile past a standing street car, in vio- lation of statute, striking B, an alighting passenger, and pushing him against C, another alighting passenger, thus throwing C to the ground and injuring him. A is liable to C. The unlawful driving of A is the proximate cause of the injury. 112 62. Through the negligence of the defendant, a door fell upon plaintiff's intestate, so injuring him that he had to be removed to a hospital, where he died over five months later, of shock fol- lowing a skillfully performed surgical operation rendered neces- 111 Wood v. Pennsylvania R. Co., (1896) 177 Pa. 306, 35 Atl. 699, 35 L. E. A. 199, 55 Am. St. Rep. 728. The conclusion seems somewhat questionable. It is to be noticed that naturalness and probability are very heavily stressed in the follcrwing extract from the case: "Does any one believe the natural and probable consequence of standing 50 feet from a crossing, to the one side of a railroad, when a train is ap- proaching, either with or without warning, is death or injury? * * * Clearly, it was not the natural and probable consequence of its neglect to give warning, and therefore was not one which it was bound to foresee. The injury, at most, was remotely possible, as distinguished from the natural and probable consequences of the neg- lect to give warning. As is said in Railroad Co. v. Trich, 117 Pa. 399, 11 Atl. 627, 2 Am. St. Rep. 672. 'Responsibility does not ex- tend to every consequence, which may possibly result from negli- gence.' " See Columbus R. Co. v. Newsome, (1914) 142 Ga. 674, 83 S. E. 506, L. R. A. 1915 B 1111, in which the defendant negligently ran its electric car against a horse driven by a third party, thrusting the horse against the plaintiff and injuring him. It was held that plaintiff's injuries were a prox- imate result of defendant's negli- gence. Possibly the circumstances of the two cases are sufficiently different to justify an attempt to distinguish between them, the im- pact being a little more direct in the Georgia case. Even if we ac- cept the requirement of the Penn- sylvania court in Wood v. Railroad, practically to the effect that, in order to hold a defendant for a consequence of his negligence, the particular result must have been possible to foresee, we can per- haps reconcile the result reached in the Wood case with that in the Columbus case;, for the consequence in the latter case was one some- what more likely to occur. 112 Frankel v. Norris, (1916) 252 Pa. 14, 97 Atl. 104, L. R. A. 1917 E 272. 60 LAW OF DAMAGES sary by his injury. At the time of his injury, intestate was 32 years old, strong and healthy, and had never been sick. Defend- ant is liable for intestate's death. The injury was the cause of the death. 113 63. A workman 's hand was so badly crushed by an accident in the course of his employment, that an operation had to be per- formed. Ordinarily the operation would have been amputation, but a competent surgeon undertook to save the hand by a double operation, in the second stage of which the workman unexpect- edly died under an anesthetic. ' : There was no reason for ap- prehending death, but death did ensue. ' ' The employer is liable for the death. The administration of the anesthetic w r as not a new, efficient, intervening cause, as the steps taken to obviate the consequences of the accident were reasonable. 114 64. Deceased employee received an injury through a splash of molten lead into his eye. As a result, he became insane, and obeying an uncontrollable impulse, without conscious volition to produce death, leaped from a window and was fatally injured. The employer is liable. "The obligation to pay compensation under the Workmen's Compensation Act * * * is absolute when the fact is established that the injury has arisen 'out of and in course of the employment. It is of no significance whether the precise physical harm was the natural and probable or the abnormal and inconceivable consequence of the employ- ment. * * * The inquiry relates solely to the chain of cau- sation between the injury and the death." 115 65. A statute prohibited the employment of boys under 14 years of age in coal mines. Defendant employed a boy under 14 in its mine, and he was injured there, while working in a dan- gerous place without having been given proper instructions. Such employment constitutes negligence on the part of the de- fendant, and is the proximate cause of an injury which is a nat- ural, probable, and anticipated consequence of the non-observ- ance." 116 113 Eettig v. Fifth Ave.Transp. B. N. S. 528, 100 L. T. N. S. 740, Co., Limited, (1893) 26 N. Y. 25 Times L. R. 451, 53 Sal. Jo. 430. Supp. 896, 6 Misc. 328. 115 In re Sponatski, (1915) 220 114 Shirt v. Calico Printers' Mass. 526, 108 N. E. 466, 8 N. C. Association, Limited, [1909] 2 K. C. A. 1025. B. 51, 3 B. R. C. 62, 78 L. J. K. 116 Griffith v. American Coal CAUSE AND RESULT 61 66. A libels B, a concert singer in C's oratorio. B therefore refuses to sing for C, for fear of a bad reception at the hands of the public. C can recover nothing of A, as C 's loss of B 's serv- ices is not a proximate result of A's wrong. 117 67. In an action for assault and battery, plaintiff alleges that, as a result of disability caused by the wrong, he lost the office of surgeons' mate, to which he would have been appointed. Held, too remote a result to allow of recovery, although specially pleaded. 118 68. A fraudulently sells to B a horse affected with glanders, a disease known to be dangerous to human beings. C has charge of the horse for B and thereby contracts glanders and dies. C 's death gives a right of action against A. 119 Co., (1916) 78 W. Va. 34, 88 S. E. 595. The case holds, however, that liability attaches, not to all injuries in the course of the un- lawful employment, but only those injuries against which the statute is intended to guard. The line thus drawn, although probably nec- essary, is, at best, shadowy and indefinite, making necessary the adjudication of each kind of in- jury in order to determine whether it falls into the class which the statute is intended to prevent. 117 Ashley v. Harrison, (1793) 1 Esp. 48. 118 Brown v. Cummings, (1863) 7 Allen (Mass.) 507. "The rule of law is, that where special damages are not alleged in the declaration, the plaintiff can prove only such damages as are the necessary as well as proximate result of the act complained of; but where they are alleged, they may be proved so far as they are proximate, though not the necessary result. 1 Chit. PI. (6th ed.) 441; 2 Greenl. Ev. 256; Dickinson v. Boyle, (1835) 17 Pick. (Mass.) 78, 28 Am. Dec. 281. As the declaration in this case alleges the loss of the office as special damage, the evidence was admissible, if the loss can be regarded as a proximate result of the assault and battery. So far as we have been able to find au- thorities on the point (for none were cited on behalf of the plain- tiff), they tend to show that it was not proximate, but remote. ' ' See also Boyce v. Bayliffe, (1807) 1 Camp. 58, where an assault and false imprisonment of a passenger by the captain of a ship were held not to be the proximate cause of the passenger's quitting the ship and taking passage on another ves- sel for the remainder of his jour- ney. "That a man may tranship himself and throw the expense of this upon another, the injury must continue down to the moment of his leaving the first ship, and he must then act with a view to the preservation of his life, or at least from a reasonable regard to his own safety." 119 State v. Fox, (1894) 79 Md. 514, 29 Atl. 601, 24 L,. E. A. 679, 47 Am. St. Rep. 424. CHAPTER V AVOIDABLE CONSEQUENCES 16. In General. A plaintiff, either in tort or in con- tract, cannot recover for such consequences of the def end- ant 's wrong as the plaintiff could have avoided by the exercise of reasonable prudence. 1 "In cases of contract, as well as of tort, it is generally incumbent upon an in- jured party to do whatever he reasonably can, and to im- prove all reasonable and proper opportunities to lessen the injury. ' ' 2 " The law will not permit him to throw a loss, resulting from a damage to himself, upon another, arising from causes for which the latter may be re- sponsible, which the party sustaining the damage might, by common prudence, have prevented." 3 "There is a line of decisions which establish the doctrine that, where one party has broken an executory contract, the other, who is in the right, cannot go on indefinitely as if the con- tract still were unbroken, but is bound to do what he reasonably can to stop the damages for which the first party will be liable in consequence of his breach. ' ' 4 Where plaintiff sues for wrongful obstruction of his drain, which he could have removed for $25, it has been held that he can recover only $25, and not $100 for dam- age caused by resulting overflow. 5 The defendant is not 1 Indianapolis, etc., B. Co. v. 2 Sutherland v. Wyer, (1877) Birney, (1874) 71 HI. 391; Miller 67 Me. 64. v. Trustees of Mariners' Church, 3 Miller v. Trustees of Mari- (1830) 7 Me. 51, 20 Am. Dec. 341; ners' Church, supra. Loker v. Damon, (1835) 17 Pick. 4 Keith v. De Bussigney, (1901) (Mass.) 284; Clark v. Marsiglia, 179 Mass. 255, 60 N. E. 614. (1845) 1 Denio (N. Y.) 317, 43 5 Lloyd v. Lloyd, (1888) 60 Vt. Am. Dec. 670. 288, 13 AtL 638. Accord: City of 62 AVOIDABLE CONSEQUENCES 63 liable for the destruction of an article which could easily have been removed from a building whose destruction by fire he has negligently caused. 6 One cannot, after re- ceiving a personal injury, do foolhardy things tending to aggravate the injury and then recover damages sufficient to compensate for the injury in its aggravated form. Where a plaintiff, after receiving alleged serious per- sonal injuries through the negligence of a railroad com- pany, walks thirty-seven miles, driving cattle, takes long trips by stage and by train, and calls no physician for about ten days after receiving the hurt, and his work and his neglect to get the necessary treatment aggravate the injury, this aggravation cannot increase the damages to be assessed against the company. 7 Just as contribu- tory negligence, in tort, bars a whole cause of action, so, when once a cause of action either in contract or in tort is established, some of the elements of damage complained of may be barred on the ground that they are avoidable consequences. 17. Remoteness of Avoidable Consequences. Prob- ably the chief reason, on principle, for not allowing the assessment of damages for avoidable consequences, is that they are too remote, as the neglect of the plaintiff to exercise ordinary prudence in endeavoring to avoid harmful consequences of defendant's wrongful act, is an independent cause intervening between the infliction of the wrong and the occurrence of the final result. "In assessing damages, the direct and immediate conse- quences of the injurious act are to be regarded, and not remote, speculative and contingent consequences, which the party injured might easily have avoided by his own Macon v. Dannenberg, (1901) 113 7 Texas & P. By. Co. v. White, Ga. 1111, 39 S. E. 446. (1900) 101 Fed. 928, 42 0. 0. A. 6 Toledo, P. & W. Ey. Co. v. 86, 62 L. B. A. 90. Pindar, (1870) 53 111. 447, 5 Am. Eep. 57. 64 LAW OF DAMAGES act. Suppose a man should enter his neighbor's field un- lawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the treasurer is responsible. But if the owner sees the gate open and passes it frequently and wilfully and obstinately or through gross negligence leaves it open all summer, and cattle get in, it is his own folly. So if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of damage. But if the owner suf- fers the window to remain without repairing a great length of time after notice of the fact, and his furniture, or pictures, or other valuable articles, sustain damage, or the rain beats in and rots the window, this damage would be too remote." 8 18. Duty of Plaintiff Only to Act as a Reasonable Man. It is not, however, required that the plaintiff do any more than a reasonable man would do to avoid injurious consequences of the defendant's wrong. It is not incum- bent upon the plaintiff to incur the greatest expense or to put forth the greatest possible efforts to prevent or lessen damage. If he has acted in good faith, shown due dili- gence, and used reasonable means to avoid the injurious consequences, that is sufficient. 9 A plaintiff in a personal injury case is not obliged to show that he has exercised any more than ordinary care and prudence in securing the service of a physician. 10 8 Loker v. Damon, (1835) 17 ville, N. A., etc., R. Co. v. Fal- Pick. (Mass.) 284. vey, (1885) 104 Ind. 409, 3 N. E. 9 Loeser v. Humphrey, (1884) 389; Illinois Central R. Co. v. 41 O. St. 378, 52 Am. Rep. 86. Gheen, (1902) 112 Ky. 695, 68 S. W. 10 Texas & P. Ry. Co. v. White, 1087; McGarrahan v. New York, (1900) 101 Fed. 928, 42 C. C. A. N. H. & H. R. Co., (1898) 171 86, 62 L. R. A. 90; Chicago City Mass. 211, 50 N. E. 610; Fullerton R. Co. v. Saxby, (1904) 213 111. v. Fordyce, (1897) 144 Mo. 519, 274, 72 N. E. 755, 68 L. R. A. 164, 44 S. W. 1053; Berry v. Greenville, 104 Am. St. Rep. 218; Pullman Pal- (1909) 84 S. Car. 122, 65 S. E. ace Car Co. v. Bluhm, (1884) 109 1030, 19 Ann. Cas. 978; St. Louis El. 20, 50 Am. Rep. 601; Louis- Southwestern Ry. Co. v. Johnson, AVOIDABLE CONSEQUENCES 65 In a personal injury case, the mere doing of an act which, as a matter of fact, prevents or retards recovery, is not of itself a ground for reduction of damages. In order so to reduce damages, the plaintiff must have vio- lated some duty, that is, he must have committed some negligent act or omitted some duty. 11 The plaintiff is not required to know what cannot be within his knowledge or to do the impossible. Where a railroad company has negligently killed his livestock, and he does not learn of the fact until the carcasses are value- less, he is not bound to avoid consequences by disposing of the bodies. 12 It would be error to instruct a jury that plaintiff, in order to recover, must show "that he took proper and immediate steps to have his condition improved," as reasonable care is all that is required. 18 The mere fact that plaintiff might have avoided damage by an expenditure amounting to somewhat less than the loss, does not diminish his measure of damages. 14 A fortiori, one is under no obligation to spend more than the amount of damage done in order to avoid the damage. 15 The law does not require plaintiff to do something un- lawful in order to avoid damage. 16 19. Plaintiff Under No Duty to Anticipate and Pre- vent Wrongful Act of Defendant.. The plaintiff is under no legal duty to expect that the defendant will commit a wrongful act and to take measures to prevent it. The (Tex. Civ. App. 1906) 94 S. W. 13 Fullerton v. Fordyce, (1897) 162; Selleck v. Janesville, (1899) 144 Mo. 519, 44 S. W. 1053. 104 Wis. 570, 80 N. W. 944, 47 L. 14 Reynolds v. Chandler River R. A. 691, 76 Am. St. Rep. 892. Co., (1857) 43 Me. 513. 11 Salladay v. Dodgeville, 15 Easterbrook v. Erie Ry. Co., (1893) 55 Wis. 318, 55 N. W. 696, (1865) 51 Barb. (N. Y.) 94. 20 L. B. A. 541. 16 Chicago, R. I. & P. R. Co. v. 12 Rockford, etc., B. Co. v. Carey, (1878) 90 HI 514. Lynch, (1873) 67 HI. 149. Bauer Dam. 5 66 mere statement of this rule puts before us a principle so self-evident as to seem almost axiomatic. Yet, in almost half the states, such a principle is given no recognition in one class of cases, those in which the plaintiff, a passen- ger on a railway train, has been negligently and wrong- fully given an incorrect ticket by one agent of the com- pany, and is wrongfully required later by another agent of the same company to leave the train, in consequence of the first agent's mistake. A large minority of the courts illogically hold that, under such circumstances, the plain- tiff must pay again in order to prevent being ordered off of the train or forcibly ejected. 17 A majority of the states hold that the plaintiff has "the option either to pay or leave the train and resort to his legal remedy. ' ' 18 being under no legal duty to pay his fare a second time in order to avoid the injury of being wrongfully ordered to leave the train. 20. Contracts of Employment. Where an employer breaks his contract with his employee by discharging him before the expiration of his contractual term of service, "the party employed cannot persist in working, though he is entitled to the damages consequent upon his dis- appointment." 19 By continuing to work under such cir- cumstances, the employee would merely cause useless damage to himself, and, in some cases, to his employer. Such damage cannot properly be charged to the latter. Furthermore, a wrongfully discharged employee must make reasonable effort to obtain other similar employ- ment in the same vicinity, in order to avoid the loss 17 Norton v. Consolidated Ry. etc., Co. v. Baker, (1906) 125 Ga. Co., (1906) 79 Conn. 109, 63 Atl. 562, 54 S. E. 639, 7 L. R. A. (N. 1087, 118 Am. St. Rep. 132. S.) 103, 114 Am. St. Rep. 246. 18 Yorton v. Milwaukee, etc., 19 Clark v. Marsiglia, (1845) 1 R. Co., (1884) 62 Wis. 367, 21 N. W. Denio (N. Y.) 317, 43 Am. Dec. 670. 516, 23 N. W. 401; Georgia Ry., AVOIDABLE CONSEQUENCES 67 accompanying non-employment. 20 He is not justified in lying idle after the breach. 21 But, where the contract is not for personal services and is not such as to exclude the contemporaneous perform- ance of other contracts by the same contractor, there is no legal obligation on the part of the contractor to en- deavor to avoid idleness by searching for other con- tracts. 22 21. Contracts of Sale. Where the vendee under a con- tract of sale of goods refuses to take the property, the vendor is under a duty to re-sell in order to avoid as much as possible of the loss attendant upon keeping the property. 23 But where vendor specially makes an article for the vendee, there is no such duty to re-sell. 24 Also, where the article is being specially made for the vendee, under a contract, and the vendee countermands his order, the vendor and maker is under a duty to keep his damages small by discontinuing work on the article. 25 In case of a breach by the vendor, amounting to a failure to tender the goods contracted for, the vendee is under a duty to avoid useless damage to himself, by purchasing elsewhere. 26 It has even been held that, in such a case, the vendee must purchase again of the vendor, breaker of the contract, if that is his only means of getting the goods. 27 Where, however, the purchaser has already paid the wrong-doing seller for the goods, 20 Gillis v. Space, (1872) 63 24 Shawhan v. Van Nest, Barb. (N. Y.) 177; Howard v. Daly, (1874) 25 O. St. 490, 18 Am. Eep. (1875) 61 N. Y. 362. 313. 21 -Sutherland v. Wyer, (1877) 25 Hosmer v. Wilson, (1859) 67 Me. 64. 7 Mich. 294, 74 Am. Dec. 716. 22 Sullivan v. McMillan, (1896) 26 Miller v. Trustees of Mari- 37 Fla. 134, 19 So. 340, 53 Am. St. ners' Church, (1830) 7 Me. 51, 20 Eep. 239; where the contract was Am. Dec. 341. to cut and deliver certain logs 27 Lawrence v. Porter, (1894) growing on certain land. 63 Fed. 62, 11 C. C. A. 27, 26 L. 23 Kadish v. Young, (1883) 108 E. A. 167; Deere v. Lewis, (1869) HI. 170, 43 Am. Rep. 548. 51 HI. 254. 68 LAW OF DAMAGES and therefore no longer has any money with which to buy, he is not required to do the impossible thing by buying again. 23 CASE ILLUSTRATIONS 1. Defendant wrongfully dug a ditch on plaintiff's mining claim. The ditch overflowed and gradually washed away nearly two acres of plaintiff's land. Held, that it is proper for defend- ant to show that plaintiff, by the expenditure of $100 for riprap- ping the bank of the new channel, could have avoided entirely, or materially diminished, the damages to the mining claim. 29 2. Defendant hires plaintiff's horse and overfeeds and improp- erly waters him, as a result of which the horse becomes ill and dies. Defendant produces "evidence tending to show that the medicines administered by the veterinary who was called in to take care of the horse upon his return to the stable, were inju- rious, and contributed to his death." Plaintiff can recover. Only reasonable care and ordinary diligence in seeking for and applying proper remedies is required of the plaintiff. 30 3. Gas-pipes were so negligently laid by defendants, that gas escaped from them into a well at plaintiff's livery stable. After learning that the well was corrupted by the gas, plaintiff per- mitted his horses to drink tfie water of the well. He cannot re- cover for the injury to the horses resulting from his own care- lessness in allowing the horses to drink the water. "He can re- cover only for the natural and direct consequences of the wrong- ful act of the defendants, and not for consequential damages which might have been avoided by ordinary care on his part." 31 4. Plaintiff, a married woman, sustained a personal injury- through the negligence of defendant. The injury was later ag- gravated by her becoming pregnant. ' ' The mere fact that eight weeks after the injury pregnancy occurred, and when no caution in that respect appears to have been given by the medical ad- 28 Illinois Central K. Ca. v. 3 Allen (Mass.) 594, 81 Am. Dec. Cobb, etc., Co., (1872) 64 HI. 128. 677. 29 Sweeney v. Montana Gen- 31 Sherman v. Fall River Iron tral Ry. Co., (1897) 19 Mont. 163, Works Co., (1861) 2 Allen (Mass.) 47 Pac. 791. 524, 79 Am. Dec. 799. 30 Eastman v. Sanborn, (1862) AVOIDABLE CONSEQUENCES 69 viser, is not necessarily and as a matter of law sufficient ground to justify a reduction of damages for the injury caused by the defendant's negligence, although the results of the injury may have been thereby prolonged, or her recovery delayed. ' ' 32 5. Plaintiff's wife was injured by a fall caused by defendant's negligence in permitting a sidewalk to become out of repair. Despite medical treatment, her foot was permanently incapaci- tated. ' ' There was no error in charging the jury that plaintiff, having used reasonable care in the employment of physicians of good reputation, was not responsible for their failure to exercise the highest skill and adopt the best means to effect a cure. ' ' 33 6. A sold to B hay, on which A knew white lead had been spilt. B 's cow, after eating of the hay, became ill of lead poisoning, and died in about a week. Held, that the following instruction was as favorable as the defendant could require: "If the plaintiff, while the cow was sick and several days before she died, knew that the cow was suffering and in danger of death from lead poison, she was bound to employ the best remedies within her reasonable reach, at reasonable trouble and expense; and if the jury were satisfied that such remedies would have been effectual, and the plaintiff did not seek for their use nor inform the de- fendant seasonably of the facts, she could not recover." 34 7. A telegraph company contracted to transmit a message from plaintiff to a sheriff, notifying him not to make a sale of certain land. The telegraph company failed to deliver the mes- sage, and the sheriff sold the land. As plaintiff was not finan- cially able to employ a lawyer, he did not move to have the sale set aside. In a suit against the company, held that plaintiff, be- ing financially unable to employ a lawyer, was not obliged to take the legal steps necessary to avoid the sale, which was the conse- quence of the defendant's wrong. The plaintiff was not required to do the impossible. 35 8. Plaintiff contracted to play in defendants' museum for 36 32 Salladay v. Dodgeville, 34 French v. Vining, (1869) 102 (1893) 85 Wis. 318, 55 N. W. 696, Mass. 132, 3 Am. Rep. 440. 20 L. E. A. 541. 35 Western Union Telegraph 33 Selleck v. City of Janesville, Co. v. Wofford, (Tex. Civ. App. (1899) 104 Wis. 570, 80 N. W. 944, 1897) 42 S. W. 119. 47 L. B. A. 691, 76 Am. St. Eep. 892. 70 LAW OF DAMAGES weeks, at $35 per week. Defendants wrongfully discharged him at the end of 18 weeks. "The plaintiff could not be justified in lying idle after the breach; but he was bound to use ordinary diligence in securing employment elsewhere, during the re- mainder of the term; and whatever sum he actually earned or might have earned by the use of reasonable diligence, should be deducted from the amount of the unpaid stipulated wages. ' ' 36 9. A contracts to take advertising space in B's paper, but re- pudiates the contract before it has been fully performed. B is under a duty to make reasonable efforts to sell the space to other parties; and his damages for the breach are the contract price less the amount he would, by reasonable efforts, have obtained for the space. 37 10. A contracted to furnish B a certain quantity of hammered stone, to be delivered on a certain day, but made delivery five months late. For A's breach, B is entitled to recover for only such results as he could not avoid by reasonable exertions. 38 11. A employs B to effect fire insurance on his property. B fails to effect the insurance. A gets notice of such failure, but neglects to insure the property himself. Held, that he cannot recover of B for a loss subsequently occurring by reason of the lack of insurance. "It has been repeatedly held that a party being damaged can not stand by and suffer the injury to con- tinue and increase, without reasonable effort to prevent further loss/' 39 12. Plaintiff's intestate delivered to defendant carrier a sum of money to be transmitted to an insurance company to pay the semi-annual premium on his life insurance. Defendant failed to transmit the money, as a result of which the intestate's policy lapsed. The intestate lived for 15 months thereafter, but made no effort to be re-instated or re-insured, so far as the evidence shows. "We think, however, it was incumbent on him to use the care and adopt all reasonable means in the premises known to him. And unless he can show some legal excuse for not doing 36 Sutherland v. Wyer, (1877) 38 Miller v. Trustees of Mari- 67 Me. 64. ners' Church, (1830) 7 Me. 51, 20 37 Tradesman Co. v. Superior Am. Dec. 341. Mfg. Co., (1907) 147 Mich. 705, 39 Brant v. Gallup, (1885) 111 111 N. W. 343, 112 N. W. 708. HI. 487, 53 Am. Rep. 638. 71 so, such as want of knowledge, failure of health, failing circum- stances of the company, etc., he should not recover damages for such loss as he might have prevented, ' ' 40 40 Grindle v. Eastern Express Co., (1877) 67 Me. 317, 24 Am. Eep. 31. CHAPTER VI CEBTAINTY OF PROOF 22. In General. Whether in tort or in contract, the plaintiff must prove his case by evidence legally admissi- ble. He must prove it to such a degree of certainty that it can be said that a verdict in his favor is supported by the evidence. This is as true in regard to the proof of damages as in regard to any other matter in a case. Damages cannot legally be assessed for loss of which the extent is not proved, or for damage not proved to be a proximate result of defendant's wrong. Damages "must be certain, both in their nature and in respect to the cause from which they proceed. >M Recovery cannot be had for damage of which either the nature or the cause is hypo- thetical, conjectural, or speculative. 2 A jury has no right to base its verdict for damages upon mere guessing and speculation. Reasonable exactness of proof is required to fix legal liability, so that results of which the causal relation to the wrong is uncertain, cannot be made a basis of liability. 3 In contract, there is the added fact that the parties cannot properly be said to have contem- plated results so vague in their connection with the wrong as to appear uncertain and speculative even after they have occurred. 4 1 Griffin v. Colver, (1858) 16 N. Y. 73, 52 N. E. 679, 44 L. R. N. T. 489, 69 Am. Dec. 718; Suth- A. 216. erland on Damages, 53. 3 Griffin v. Colver, (1858) 16 & Eiehmond & D. R. Co. v. N. Y. 489, 69 Am. Dec. 718; Wilson Allison, (1890) 86 Ga. 145, 12 S. v. Wernwag, (1907) 217 Pa. 82, E. 352, 11 L. B. A. 43; Masterton 6G Atl. 242, 10 Ann. Cas. 649; 8 v. Mt. Vernon, (1874) 58 N. Y. R. C. L. 438 et seq. 391; Laidlavr v. Sage, (1899) 158 4 -Squire v. Western Union Tel. 72 CERTAINTY 73 23. Absolute Certainty Not Required. It is not re- quired, however, that the plaintiff in a civil case prove his case beyond a reasonable doubt. He is not required to prove damage and the relation thereof to the defend- ant's wrong to any higher degree than that degree to which he must prove any other part of his case. To hold otherwise would be to put requirements of proof as to damages in a civil case on an equal footing with general requirements in a criminal case. Mere impossi- bility of computing damages with the utmost accuracy does not prevent the recovery of substantial damages; if either party is to be placed at a disadvantage by rea- son of such an impossibility, it should be the defendant, whose wrongful conduct has rendered the inquiry as to damages necessary. 5 Exact computation of the loss sus- tained by the plaintiff is perhaps less frequently possible than impossible, so that too rigid a requirement of cer- tainty of proof as to amount of damage might actually deprive many persons of a remedy rightfully theirs. Likewise, it is sometimes impossible to prove with abso- lute certainty the causal connection between defendant's wrongful act and the loss complained of; but here again only a proof by a preponderance of the evidence is neces- sary, as is true in regard to any point in a civil case. Only reasonable certainty of proof should ever be re- quired. 6 It often happens that, at the time of the trial, Co., (1867) 98 Mass. 232, 93 Am. ing v. Jones, (1893) 52 HI. App. Dec. 157; Clyde Coal Co. v. Pitts- 597. burgh, etc., B. Co., (1910) 226 Pa. 6 "It is also the rule that the 391, 75 Atl. 596, 26 L. B. A. (N. damages 'must be certain, both in S.) 1191; Sutherland on Damages, their nature, and in respect to the 58 et seq.; 8 E. C. L. 440. cause from which they proceed.' 5 Welch v. Ware, (1875) 32 This rule, however, is satisfied by ^ttch. 77. a reasonable certainty 'such cer- "The fact that the injuries are tainty as satisfies the mind of a of such a nature as not ta be sus- prudent and impartial person.' *In ceptible of exact admeasurement in using the words "uncertain, spec- money value does not make them ulative, and contingent," for the any the less proximate." Brown- purpose of excluding that kind of 74 LAW OF DAMAGES the proof is rather unsatisfactory and uncertain as to the final result of the wrong, as in the case of a recent personal injury; but the mere fact that a degree of un- certainty exists does not absolve the wrongdoer. In such cases, the court seeks to have the jury ascertain with reasonable certainty the final actual results by means of evidence of the probable extent of the injury. 7 Where a latent condition of plaintiff's health causes the results of the defendant's wrong to be greater, the plaintiff is entitled to recover for the entire damage proximately resulting from the wrong, without proving how much he would have suffered from such latent con- dition if he had not received the injury. 8 This is in ac- damage, it is not meant to assert that the loss sustained must be proved, with the certainty of a mathematical demonstration, toi have been the necessary result of the breach of covenant by defend- ant. The plaintiff is not bound to show, to a certainty that excludes the possibility of a doubt, that the loss to him resulted from the action of the defendant in violat- ing his agreement. In many cases such proof cannot be given, and yet there may be a reasonable certainty, founded upon certain in- ferences legitimately and properly deducible from the evidence, that the plaintiff's loss was not only, in fact occasioned by the defend- ant's violation of his covenant, but that such loss was the natural and proximate result of such violation. Certainty to reasonable intent is necessary, and the meaning of that language is that the loss or dam- age must be so far removed from speculation or doubt as to create in the minds of intelligent and reasonable men the belief that it was most likely to follow from the breach of the contract, and was a. probable and direct result there- of." Bates v. Holbrook, (1904) 85 N. Y. Supp. 673, 89 App. Div. 548, quoting 8 Am. & Eng. Enc. of Law, p. 548, 610. ' ' The rule against the recovery of uncertain damages has been gen- erally directed against uncertainty as to cause rather than uncertainty as to measure or extent; that is, if it is uncertain whether the de- fendant 's act caused any damage, or whether the damage proved flowed from the defendant 's act, there may be no recovery of such uncertain damages; whereas uncer- tainty which affects merely the measure or extent of the injury does not bar a recovery." Crich- field v. Julia, (1906) 147 Fed. 65, 77 C. C. A. 297. 7 People's Ice Co. v. Steamer Excelsior, (1880) 44 Mich. 229, 6 N. W. 636, 38 Am. Rep. 246. 8 Chicago City R. Co. v. Saxby, (1904) 213 111. 274, 72 N. E. 755, 68 L. R. A. 164, 104 Am. St. Rep. 218; Sherman v. Indianapolis T. & T. Co., (1911) 48 Ind. App. 623, CERTAINTY 75 cord with the well settled principle that only reasonable certainty of proof is required. The requirement of certainty varies in the mode of its application, according to the circumstances of the partic- ular case. The mode of operation of the rule requiring certain proof can be seen only by examining case illus- trations. 24. Certainty of Proof Not to Be Confused with Prox- imity of Cause. The requirement of certainty of proof must not be confused with that of proximity of result to cause, but there are numerous instances of such confu- sion. What is really too uncertain is often called "too remote," probably because remote damage is often un- certain and uncertain damage is perhaps usually remote. 9 CASE ILLUSTRATIONS 1. A contracted to give B the exclusive right to sell "Tom Moore" cigars in a certain territory. B, by his work, built up a large demand for the cigars. A broke the contract by refusing to supply B with more cigars. Held, that B has a right to re- cover for prospective profits. ' ' It seems never to have been held in this state that, where there is no other measure of damages for breach of contract, a contracting party is to be denied any dam- age because no better measure than the reasonable prospective profits of a business is attainable. We think that it would be manifestly unjust to deny to the defendant in this case any re- covery whatever for breach of his contract because the contract itself contemplated and was based upon prospective profits." 10 2. Plaintiffs are suing for the purchase price of an engine sold to defendants but delayed in delivery. Defendants seek recoup- ment in the way of damages for plaintiff's delay. "The de- fendants were not entitled to measure their damages by estimat- 96 N. E. 473; Hahn v. Delaware, (1912) 85 Conn. 438, 83 Atl. 530, L. & W. E. Co., (N. J. 1918) 105 stresses the difference between cer- Atl. 459. See 8 N. C. C. A. 969 tainty and probability, note. 10 Hichhorn v. Bradley, (1902) 9 Johnson v. Connecticut Co., 117 la, 130, 90 N. W. 592. 76 LAW OF DAMAGES ing what they might have earned by the use of the engine and their other machinery had the contract been complied with. Nearly every element entering into such a computation would have been of that uncertain character which has uniformly pre- vented a recovery for speculative profits. But it by no means follows that no allowance could be made to the defendants for the loss of the use of their machinery. " ll 3. Defendant telegraph company undertook to transmit and deliver a message for plaintiff, directing his broker to purchase a certain amount of petroleum if he deemed it advisable. Defend- ant delayed the message, so that it was delivered to the broker several hours late, as a result of which the broker could not pur- chase on exchange until the next day. Meanwhile, the price had risen, so that the broker did not think it best to purchase. Plaintiff is entitled to no damages other than the cost of trans- mitting the message. "Here the plaintiff did not purchase the oil ordered after the date when the message should have been delivered, and therefore was not required to pay, and did not pay, any advance upon the market price prevailing at the date of the order; neither does it appear that it was the purpose or intention of the sender of the message to purchase the oil in the expectation of profits to be derived from an immediate resale. If the order had been promptly delivered on the day it was sent, and had been executed on that day, it is not found that he would have resold the next day at the advance, nor that he could have resold at a profit at any subsequent day." 12 4. Plaintiff, a passenger on defendant's trolley car, was in- jured by an explosion caused by a defective controller negli- gently used by defendant. Recovery is sought for both present and prospective injuries. She cannot recover for merely possi- ble prospective injuries, but she can recover for prospective in- juries likely to result. " 'Certainty' is freedom from doubt, and if a plaintiff is required to prove that future apprehended con- sequences are reasonably free from doubt, he has imposed upon him a burden far beyond the ordinary requirement of proof in 11 Griffin v. Colver, (1858) 16 Hall, (1888) 124 U. S. 444, 31 L. N. Y. 489, 69 Am. Dec. 718. ed. 479, 8 Sup. Ct. 577. 12 Western Union Tel. Co. v. CERTAINTY 77 a civil action and approximating closely to the proof beyond a reasonable doubt of the criminal action." 13 5. A negligently left gaps in his fence, and B negligently failed to fence his own property. Depredations upon B's property by cattle resulted, partly from the negligence of each party; but the testimony failed to show what part of the damage was due to B's negligence. A cannot recover of B. 14 6. Because of the failure of A to pay a certain sum of money when due, B loses the opportunity to make investments in the market. B cannot recover for this loss. Whether he would have made or lost money if the payment had been made, is un- certain. 1 5 7. A contracts to deposit a certain sum of money with B, to be applied on furniture which A is to purchase when he gets married. A does not make the deposit and does not marry. No damages can be measured here. It is not certain how much B is damaged or whether he is damaged at all by A 's failure to de- posit. 16 8. Defendant so negligently operated its locomotive that dense smoke and vapors fell upon, and went through, plaintiff's dwell- ing-house, causing damage to the house and its contents. The fact that it is impossible to say just how much of the damage was caused by negligent firing and how much was the necessary result of the operation of a railroad, does not make the damages so uncertain as not to be recoverable, 17 9. Plaintiff's lands were flooded, which was due partly to the acts of defendant and partly to natural causes. Plaintiff may recover. ' ' It seems to be obvious that all water which flows on plaintiff's land must necessarily occasion damage to him. There is no reason in saying that, because his land would be overflowed in the natural condition of that water, that no harm is done in augmenting such inundations. The larger the augmentation of water, it would seem, the greater the injury would be by reason 13^Johnson v. Connecticut Co., 16-Katz v. Wolf, (1896) 37 N. (1912) 85 Conn. 438, 83 Atl. 530. Y. Supp. 648, 16 Misc. 82. 14 Hightower v. Henry, (1905) 17 Jenkins v. Pennsylvania K. 85 Miss. 476, 37 So. 745. Co., (1902) 67 N. J. Law 331, 51 15 Greene v. Goddard, (1845) 9 Atl. 704, 57 L. B. A. 309. Mete. (Mass.) 212i 78 LAW OF DAMAGES of such increase. It is a question for the good sense of the jury."" 10. Cattle, of which part belonged to defendant and part to others, trespassed on plaintiff's land and destroyed his corn. Plaintiff may recover substantial damages. "In cases of this sort, entire accuracy is impossible. The jury had a right to con- sider from the evidence how much corn had been destroyed, and what proportion of the cattle in the field were turned in by the defendant, and thus arrive at as near an estimate of the damages as the nature of the case would permit." 19 11. Defendant cast refuse material out of his sawmill into a stream, from which a freshet carried it to the plaintiff's land. Plaintiff may recover. "The difficulty may be great of accu- rately proportioning and assessing the damages done by the de- fendant, but that difficulty the defendant would have avoided had he taken care that no occasion should arise requiring such assessment of damages." 20 12. Defendant city's pumping-station was so operated as greatly to lower the water level of plaintiff's land and diminish its productive capacity. "A plaintiff is entitled to damages for the diminution of the productive value of the property occa- sioned by the trespass, and upon evidence showing the nature, character, and extent of the business of cultivating the property interrupted or diminished by the trespass plaintiff is entitled to have an assessment of damages, even if, upon the evidence, it is very difficult to reach a satisfactory result." 21 13. A water company contracted with a city to keep fire hy- drants constantly supplied with water under sufficient pressure for effective fire services. This it failed to do. The damages for this breach were difficult to assess, "but mere difficulty in assess- ing damages is no reason for denying them to a party who has a right to compensation as a substitute for that which he was en- titled to receive, but of which he has been deprived by the de- fault of another. * * * The damages in such a case must 18 Phillips v. Phillips, (1870) 20 Washburn v. Oilman, (1874) 34 N. J. Law 208. Accord: Chi- 64 M e. 163, 18 Am. Rep. 246. cago & N. W. By. Co. v. Hoag, 21-Dinger v. City of New York, "* ' (1903) 86 N. Y. Supp. 577, 42 " 339> Misc. 319; affirmed in memorandum 19 Ogden v. Lucas, (1868) 48 decision, (1905) 182 N. Y. 542, 75 111. 492. N. E. 1129. CERTAINTY 79 be assessed in such reasonable amounts as, in the judgment of the court or jury, the evidence warrants. ' ' 22 14. Defendant, upon the purchase of certain "beautifiers for women" by plaintiffs, agreed to print plaintiff's names at the bottom of all defendant's advertisements in the Detroit news- papers as carrying defendant's preparations for sale. Defend- ant, after eight months, ceased so to print plaintiff's names, and inserted instead the name of another house as wholesale agents in Detroit. Judgment for defendant. "The injury suffered, if any, was a loss of such profits as would have resulted from adver- tising a matter of mere conjecture, depending upon the num- ber who might read and act upon the advertisement. ' ' 23 15. Plaintiff was injured through the negligence of defendant village, and was compelled to cease his work of buying teas, so that there was a great falling off in the amount of business done by his firm. Held, that profits lost through the injury cannot be recovered. ' ' These profits depend upon too many contingencies, and are altogether too uncertain to furnish any safe guide in fixing the amount of damages." 24 16. A contracted to procure an assignment of certain stock to B, but failed to do so. The evidence tended to show that the stock was worth its face value of $4,000. There is no such un- certainty as to prevent recovery for the breach. 25 17. Plaintiff agreed to perform certain services for defendant, in consideration of which defendant promised to pay plaintiff $5,000 and six per cent preferred stock in a certain corporation to be organized, to the par value of $100,000. Plaintiff per- formed the services, and the corporation was organized, but it did not issue any preferred stock, for which reason there was no market value of such stock ascertainable. Plaintiff's damages resulting from the breach of the contract to transfer him the stock, are not too uncertain to be recoverable. 26 22 First National Bank of 25 First National Bank of Wa- Minneapolis v. St. Cloud, (1898) terloo v. Park, (1902) 117 la. 552, 73 Minn. 219, 75 N. W. 1054. 91 N. W. 826. 23 Stevens v. Yale, (1897) 113 26 Crichfield v. Julia, (1906) Mich. 680, 72 N. W. 5. 147 Fed. 65, 77 C. C. A. 297. In 24 Masterton v. Mt. Vernon, such a case, the property to be de- (1874) 58 N. Y. 391. See also Howe livered having no market value, Maeh. Co. v. Bryson, (1876) 44 la. its real value is determined by con- 159, 24 Am. Eep. 735. sidering other facts. Among these 80 LAW OF DAMAGES 18. Plaintiffs contracted to furnish defendants with "what- ever quantities of silicate of soda they will require to use in their factories during one year from date" at the price of $1.10 per 100 pounds. Two hundred and fifty barrels of the article were delivered under the agreement, when defendants notified plaintiffs that they would not receive any more. During the bal- ance of the year referred to in the contract, the defendants used about 2,877 barrels of the article, which they purchased of other parties. Silicate of soda is not on sale in the market, so that there is no market value. Plaintiffs may recover profits which they would have made under the contract. 27 19. Defendants, contractors, in constructing an underground street railroad in front of plaintiff's hotel, erected a structure which was a nuisance, preventing plaintiff from receiving a nor- mal amount of rental for his rooms, and diminishing the amount of receipts from the restaurant business in connection with the hotel. Held, that, under the circumstances proved, the losses of the plaintiff were sufficiently certain to be recoverable. The amount of the business done before the beginning of the nui- sance, the amount done during its continuance, and the amount done after its cessation, are competent to show what damage was done. ' ' What the law requires is the best and most certain proof that it is possible to supply, and such proof we have in this case." 28 20. Defendant contracted to transmit and deliver a telegram for plaintiff, to a third party, announcing her husband's death, stating that she would arrive at 6 A. M. with the corpse, and requesting him to tell Thomas, one of her husband's relatives. Defendant negligently changed the name of the sender from "Edith Cowan" to "Edith Erwin," so that the receiver knew nothing of the meaning of the message, and so did not comply with the request. Plaintiff arrived with the corpse and had to wait three or four hours, until her friends had been notified. She asks damages for mental suffering. Held, that claims of this nature will not be disallowed merely "because of the impossi- facts is the market value of the N. Y. 382, 42 N. E. 982, 52 L. corporation's property. Hewitt v. R. A. 225. Steele, (1893) 118 Mo. 463, 24 S. 28 Bates v. Holbrook, (1904) 85 W. 440. N. Y. Supp. 673, 89 App. Div. 548. 27 Todd v. Gamble, (1896) 148 CERTAINTY 81 bility of providing any exact standard or measure of compensa- tion for injured feelings." 29 21. Defendant committed an assault and battery on plaintiff. a theatrical performer, by reason of which plaintiff lost time and professional gains. Some difficulty was experienced in arriving at a fair measure of damages for such loss, as the defendant performed jointly with his wife. Inability to compute damages with accuracy, is no reason why the jury should not get such information as may be had. A wrong-doer must bear the risk of failure to reach an exact result, "because it is not the plain- tiff's fault that the inquiry has become necessary. Where no better means can be had, the jury must use their best judgment, and it is presumed that counsel will urge before them all consid- erations which will aid them in avoiding injustice." 30 22. The defendant, by false representations, induces the plain- tiff to lease a certain parcel of land, close to the entrance to cer- tain centennial exposition grounds, for a restaurant. The evi- dence showed that it was very uncertain whether plaintiff would have profited or lost by the venture if defendant's representa- tions had been true, as others in similar ventures at this exposi- tion had lost money. Plaintiff's damages are too speculative to be recoverable. 31 29 Cowan v. Western Union 30 Welch v. Ware, (1875) 32 Telegraph Co., (1904) 122 la. 379, Mich. 77. 98 S. W. 281, 64 L. B. A. 545, 31 Myers v. Turner, (Tenn. 101 Am. St. Eep. 268. 1898) 52 8. W. 332. Bauer Dam. >6 CHAPTER VII ENTIRE AND PROSPECTIVE DAMAGES l 25. In General. One of the most important and un- failing principles of the law of damages is that one in- jury gives rise to only one right of action. Past and fu- ture damage growing out of one injury must be compen- sated for in one action. 2 It is safe to say that no care- fully reasoned judicial opinion has ever violated this principle. At first glance, some cases will seem to the student to be exceptions to the general rule; but such cases are only apparently, and not actually, outside the operation of the rule, as we shall see. Neither in con- tract nor in tort can more than one action be brought for one injury. The useless splitting up of a right of action is not tolerated by the courts. Occasionally, the rule works a seeming injustice, as in a case of personal in- jury, where, after the plaintiff gets judgment against the wrongdoer, there accrue proximate consequences more serious than any that were known or anticipated at the time of the trial ; but the rule is a necessary one, and in the main just. In contract, damages assessed once for all, in compen- sation for all losses past and future, are known as entire damages ; and, in tort, damages for future loss are called prospective damages. 1 For a more comprehensive 5 N. W. 495: Hargreaves v. Kim- discussion of this subject as affect- berley, (1885) 26 W. Va. 787, 53 ing torts to realty, see Chapter Am. Eep. 121. XL. Contract: Gait v. Provan, (1906) 2 Tort: Powers v. City of Coun- 131 la. 277, 108 N. W. 760; Fish cil Bluffs, (1877) 45 la. 652, 24 v. Folley, (1843) 6 Hill (N. Y.) Am, Eep. 792; Stodghill v. Chicago, 54. B. & Q. B. Co., (1880) 53 la. 341, 82 ENTIRE AND PROSPECTIVE DAMAGES 83 26. Continuing Wrongs and Series of Wrongs. The apparent, but not real, exceptions to the general rule that a plaintiff cannot have more than one action for one in- jury, are cases of continuing wrongs or of series of wrongs. The too loose use of the term ''continuing wrong" is unfortunate, as a more accurate expression would, in many instances, be "series of wrongs;" for a continuing wrong is sometimes really a chain of wrongs, alike in their nature and traceable to one beginning. Where an injury is of such a kind as to be complete with- out proof of damage, as in an ordinary case of trespass to realty, the act of the defendant, being wrongful, gives rise at once to a right of action in the plaintiff, and all damage, past and future, is compensated for in the one action. 3 Greater difficulty arises where the defendant has done an act not wrongful in itself, from which a number of events in a series occur as proximate results, each bringing damage to the plaintiff and each consti- tuting a cause of action. Such a case is that of A's with- drawal of a part of the soil of his own land, depriving B 's land of its natural support. The withdrawal of the support is not of itself wrongful and gives B no right of action. Just as soon as B 's land is actually damaged by the excavation, and no sooner, B has a right of action. At the first subsidence of his land, he can maintain his first action. Then, if B 's land again subsides from time to time, as a result of the excavation, B can bring new and successive actions just as frequently as a subsidence adds to his damage. 4 Each subsidence completes a new 3 ''The adjudged cases are tainetl for the recovery of the agreed as to the abstract rule that, damages as they accrue. In the ap- where the injury wholly accrues plication of the rule, however, the and terminates when the wrong- authorities are somewhat conflict- f ul act causing it is done, there ing. ' ' Bowers v. Mississippi, etc., can be but one action for the re- Boom Co., (1899) 78 Minn. 398, 81 dress of the injury. But, where N. W. 208, 79 Am. St. Eep. 395. the injury is in the nature of a 4 "No one will think of dis- continuing trespass or nuisance, puting the proposition that for one successive actions may be main- cause of action you must recover LAW OF DAMAGES cause of action. The series of losses thus resulting to the defendant really constitutes a series of wrongs ; and it cannot be properly said that either the original act of the defendant or the resulting series of losses comprises a continuing wrong, the defendant's act not being of it- self wrongful at all, and the series of losses constituting, not a continuing wrong, but a series of wrongs and therefore a series of rights of action. If it were not true that each one of such losses is, in legal contempla- tion, an injury of itself, no new action for a new loss would lie after the maintenance of an action for a loss earlier in the series. Where the defendant has committed upon the plaintiff a battery, which constitutes but one wrong, and the plain- tiff has sued and recovered damages, and a piece of bone later falls out of the plaintiff's skull as a result of the all damages incident to it by law once and forever. A house that has received a shock may not at once shew all the damage done to it, but it is damaged none the less then to the extent that it is dam- aged; and the fact that the dam- age only manifests itself later on, by stages, does not alter the fact that the damage is there. And so of the more complex mechanism of the human frame; the damage is done in a railway accident; the whole machinery is injured, though it may escape the eye or even the consciousness of the sufferer at the time; the later stages of suffering are but the manifestations of the original damage done, and conse- quent upon the injury originally sustained. ' ' But the words ' cause of ac- tion' are somewhat ambiguously used in reasoning upon this sub- ject. What the plaintiff has a right to complain of in a court of law in this case is the damage to his land, and by the damage I mean the damage which had in fact oc- curred; and, if this is all that a plaintiff can complain of, I do not see why he may not recover toties quoties fresh damage is inflicted. * I cannot understand why every new subsidence, although proceeding from the same original act or omission of the defendants, is not a new cause of action, for which damages may be recovered. I cannot concur in the view that there is a breach of duty in the or- iginal excavation. ' ' Lord Hals- bury, in Darley Main Colliery Co. v. Mitchell, (1886) 11 App. Cas. 127. See New Salem v. Eagle Mill Co., (1884) 138 Mass. 8; and Mc- Connel v. Kibbe, (1864) 33 111. 175, 85 Am. Dec. 265. ENTIRE AND PROSPECTIVE DAMAGES 85 battery, the plaintiff cannot maintain a second action. 5 His first action has exhausted his right. 27. Torts Having More Than One Aspect, Sometimes a tort has, to the plaintiff, more than a single aspect, af- fecting him as to his person and as to his property, or injuring two different pieces of his property; but this fact does not give him two separate rights of action. Where a plaintiff has, as a result of the same wrong, suf- fered damage both to his person and to his property, it is generally held that he has only one cause of action. He cannot bring one suit for his personal injury and later maintain a suit for the injury to his property. 6 Where the defendant has converted property of the plaintiff, the latter cannot first maintain one action for the value of the property and later maintain another action for special damages, based upon the same con- version. 7 So, strictly on principle, where the plaintiff has sued one of two joint converters and recovered against him, the plaintiff is barred from maintaining a subsequent action against both converters. 8 Where the defendant has negligently burned timber growing on two lots belonging to the plaintiff, by one act, the plaintiff has only one cause of action. 9 By merely calling one of- fense by two different names, a plaintiff cannot maintain two actions for the one wrong. For instance, where the 5 Fetter v. Beale, (1799) 1 Ld. Am. St. Eep. 636; Watson v. Texas Kaym. 339. & P. By. Co., (Tex. Civ. App. 6 Doran v. Cohen, (1888) 147 1894) 27 S. W. 924. Mass. 342, 17 N. E. 647; King v. 7 Sullivan v. Baxter, (1889) 150 Chicago, M. & St. P. By. Co., (1900) Mass. 261, 22 N. E. 895. 80 Minn. 83, 82 N. W. 1113, 50 L. 8 Bennett v. Hood, (1861) 1 B. A. 161, 81 Am. St. Bep. 238. Allen (Mass.) 47, 79 Am. Dec. 705. Contra: Brundsen v. Humphrey, 9 Knowlton v. New York, etc., (1884) 14 Q. B. D. 141, 53 L. J. B. Co., (1888) 147 Mass. 606, 18 Q. B. 476, 51 L. T. 529, 32 W. B. N. E. 580; Sullivan v. Baxter, 944; Beilly v. Sicilian Asphalt Pav- (1889) 150 Mass. 261, 22 N. E. ing Co., (1902) 170 N. Y. 40, 62 895. N. E. 772, 57 L. B. A. 176, 88 defendant has enticed and carried away the plaintiff's wife, plaintiff cannot maintain two separate actions, one an action on the case for enticing her away, and the other an action of trespass for carrying her away. 10 Like- wise, where the value of goods has been recovered in trover, assumpsit for the value of the same goods will not lie. 11 28. Entire Damages. In contract, entire damages can- not be assessed unless there has been an entire breach. If a contract is a divisible one, so that the contractor is bound to do a series of acts independent of one another, upon breach as to one of the acts, the other party may sue and recover damages, and subsequently a new right of action accrues upon each subsequent and separate breach. 12 However, "a continuous running account be- 10 Gilchrist v. Bale, (1839) 8 Watts (Pa.) 355, 34 Am. Dec. 469. 11 Agnew v. McElroy, (1848) 10 Smedes & Mar. (Miss.) 552, 48 Am. Dee. 772. 12 Curry v. Kansas & C. P. Ry. Co., (1897) 58 Kan. 6, 48 Pac. 579. "It is undoubtedly true that only one action can be maintained for the breach of an entire contract, unless, by the terms of it, it is in its nature divisible. But if one contracts to do several things, at several times, an action of assump- sit lies upon every default; for, although the agreement is entire, the performance is several, and the contract is divisible in its nature. Thus, on a note or other contract payable by installments, assumpsit lies for non-payment after the first day; or where interest is payable annually, the payment of the prin- cipal being postponed to a future time, assumpsit lies for the non- payment of interest, before the principal becomes due and payable. In all such cases, although the contract is in one sense entire, the several stipulations as to pay- ment and performance are several, and are considered, in respect to the remedy, as several contracts. This principle has long been well settled, although the law in this respect has been very much mod- ified by modern decisions. * * * "A contract to do several things, at several times, is divisible in its nature; and that an action will lie for the breach of any one of the stipulations, each of these stipulations being considered as a several contract. * * * "As the law is, we think it can not be maintained, that a running account for goods sold and de- livered, money loaned, or money had and received, at different tames, will constitute an entire demand, unless there is some agreement to that effect, or some usage or course of dealing, from which such an agreement or un- ENTIRE AND PROSPECTIVE DAMAGES 87 tween the same parties, is an entire thing, not susceptible of division, the aggregate of all the items being the amount due. If this is not so, then each item of which the account is composed is a separate debt for which the party may sue. ' ' 13 CASE ILLUSTRATIONS 1. Defendant, operating a mill, so placed a large exhaust steam pipe that the steam was ejected with force into plaintiff's resi- dence, causing an excessive amount of moisture in plaintiff's home, so that the house became mouldy and damp, and plaintiff contracted asthma and rheumatism. "It is urged that plain- tiff's instruction on the measure of damages was erroneous, in that it allowed a recovery for future as well as past suffering. But the petition included that, and the evidence showed she had not recovered, and the jury were told that before they could in- clude future suffering, they must find that she had not recov- ered, which would make future suffering, not only probable, but certain." 14 2. Defendant railroad company committed a wrong amount- ing to a permanent injury to plaintiff's mill, by diminishing the water power. "In the instant case the measure of damages is the difference between the market value of the mill property be- fore and after the injury. As the assessment is to be made now of the damages to flow from permission to take the water in the future, the evidence should be confined to the market value, at the present time, of the plaintiff's mill property with an undis- turbed flow of water, and with the flow disturbed as proposed by the defendant." 15 3. A railway company contracts to issue passes annually to derstanding may be inferred. No 13 Oliver v. Holt, (1847) 1 Ala. such agreement, or course of deal- 574, 46 Am. Dec. 228; Bender- ing, is set up in this case, and nagle v. Cocks, (1838) 19 Wend, consequently, the defendant's plea, (N. Y.) 207, 32 Am. Dee. 448. that the cause of action in this 14 Strumph v. Loethen, (Mo. suit is identical with that of the App. 1918) 203 S. W. 238. former action, can not be main- 15 Norfolk & W. Ey. Co. v. tained." Badger v. Titcomb, A. C. Allen & Sons, (Va. 1918) (1834) 15 Pick. (Mass.) 409, 26 95 S. E. 406. Am. Dec. 611. 88 X, for life. Held, that this contract is divisible, and may be sued on annually, upon each breach. 16 4. A agreed to supply B with 20 bales of hops per month, from October to February, for five years. Before the completion of the contract, A elected not to perform. Held, that B can, upon this refusal to perform, maintain one action for damages for "what he would have suffered by the continued breach of the other party down to the time of complete performance, less any abatement by reason of circumstances of which he ought reason- ably have availed himself. ' ' 17 16 Curry v. Kansas & C. P. 17 Koehm v. Horst, (1900) 178 By. Co., (1897) 58 Kan. 6, 48 U. S. 1, 44 L. ed. 953, 20 Sup. Pac. 579. Ct. 780. CHAPTER VIII EXCESSIVE AND INADEQUATE DAMAGES 29. Verdict May Be Set Aside for Excessiveness or In- adequacy of Damages. Usually a court is slow to set aside a verdict on the ground that the damages allowed are excessive or that they are inadequate. Especially reluctant is a court to set aside as excessive or inadequate a verdict in a case wherein the exact or approximate amount of damage is difficult to determine. 1 A court is 1 In Huckle v. Money, (Com- mon Pleas, 1763) 2 Wilson 205, 95 Eng. Repr. 768, Lord Chief Justice Pratt said: "In all motions for new trials, it is as absolutely neces- sary for the court to enter into the nature of the cause, the evidence, facts, and circumstances of the case, as for a jury; the law has not laid down what shall be the measure of damages in actions of tort; the measure is vague and un- certain, depending upon a vast va- riety of causes, facts, and circum- stances; torts or injuries which may be done by one man to anoth- er are infinite; in cases of criminal conversation, battery, imprison- ment, slander, malicious prosecu- tions, etc., the state, degree, qual- ity, trade, or profession of the party injured, as well as of the person who did the injury, must be, and generally are, considered by a jury in giving damages; the few cases to be found in the books of new trials for torts show that conirts of justice have most com- monly set their faces against them; and the courts interfering in these cases would be laying aside juries; before the time of granting new trials, there is no instance that the judges ever intermeddled with the damages." See also Terre Haute, etc., E. Co. v. Vanatta, (1853) 21 111. 188, 74 Am. Dec. 96. "In determining whether a ver- dict is excessive, each case must be governed by its own facts and circumstances. ' ' 8 R. C. L. 675. "In determining whether or not a verdict in an action for personal injuries, or other personal tort, is excessive, the court will consider all the circumstances; for example, the nature and extent of the in- jury, whether or not it is perma- nent, the amount of suffering which the plaintiff has endured in conse- quence of the injury, the probabil- ity of future pain and suffering, the expenses which he has been 89 90 LAW OF DAMAGES less ready to interfere where the damages are nonpe- cuniary than where they are pecuniary, as it is harder to say that damages for a non-pecuniary injury are too much or too little. Yet there are many cases in which damages were non-pecuniary, but in which the jury found a verdict for damages so clearly excessive or inad- equate, that the court set the verdict aside. 2 Where the amount of damage is easily stated or approximated, a court can, with more reason, say that the amount of a verdict is excessive or inadequate. 3 If a verdict has been rendered for an amount so large that it could not possibly have been arrived at by a proper assessment of damages for the various elements of injury in the case, compelled to incur, and the extent to which his earning power has been diminished or permanently impaired. Consideration will also be given to such matters as the age of the plaintiff, his expectancy of life, and the amount of his pre- vious earnings. ' ' 8 R. C. L. 678. "If there is a legal measure of damages which the jury have devi- ated from, by finding either less or more than the plaintiff is entitled to by a preponderance of the evi- dence, the trial court, in the exer- cise of discretion, will entertain a motion for a new trial on behalf of the party injured by the find- ing. So if the jury assess damages not warranted by the declaration, the verdict will be set aside, and the court may da it ex officio. Where there is not a legal measure of damages, and where they are unliquidated, and the amount thereof is referred to the discretion of the jury, the court will not, or- dinarily, interfere with the verdict. It is the peculiar prorvince of the jury to decide such cases under ap- propriate instructions from the court; and the law does not recog- nize in the latter the power to substitute its own judgment for that of the jury." Sutherland on Damages, 459. 2 Peterson v. Western Union Tel. Co., (1896) 65 Minn. 18, 67 N. W. 646, 33 L. E. A. 302. 3 Phillips v. London & S. W. E. Co., (1879) L. E. 4 Q. B. D. 406; in which the court is led to the conclusion, not only that the dam- ages are inadequate, but that the jury must have omitted to take into consideration some of the ele- ments of damage which ought to have been taken into account. A considerable part of the damage in this case was pecuniary and easily calculable, so that the court could more easily set aside the verdict than if the damage had been wholly or almost wholly non-pecu- niary. The amount of the verdict, 7,000, considered by itself, was large; so that, if it had been large- ly for non-pecuniary elements, it would not have been very likely to be set aside as inadequate. EXCESSIVE AND INADEQUATE DAMAGES 91 the verdict is set aside. 4 Likewise, if the verdict is for the plaintiff, but is for so small a sum as to make it clear that the jury has not given proper consideration to all elements of damage in the case, the court sets aside the verdict. 5 In either of these cases, the verdict is against the law and the evidence and is regarded as indicating passion, prejudice, or ignorance on the part of the jury. As is well said by McClain, J., in Tathwell v. City of Cedar Eapids, 6 "The right of jury trial, as uniformly recognized under the common law system, involves the determination by the jury, rather than by the judge, of questions of fact, including the amount of damages to be given where compensation is for an unliquidated demand. Nevertheless, the trial courts have exercised from early times in the history of the common law the power to supervise the action of the jury, even as to the measure of damages, and to award a new trial where the verdict is not supported by the evidence and is manifestly un- just and perverse. And while it is uniformly held that the trial judge will interfere with the verdict of the jury as to matters of fact with reluctance, and only where, on the very face of the evidence, allowing every presump- tion in favor of the correctness of the jury's action, it is apparent to a reasonable mind that the verdict is clearly contrary to the evidence, yet the power of the judge to interfere in extreme cases is unquestionable. It has sometimes been said that the judge should not interfere where the verdict is supported by a scintilla of evidence ; but the scintilla doctrine has been discarded in this state, and is not now generally recognized elsewhere." In 4 Peterson v. Western Union In some jurisdictions, statutes Tel. Co., supra; Wood v. Gunston, prohibit the granting of now trials (King's Bench, 1655) Style's Be- on account of inadequacy of dam- ports 466, 82 Eng. Eepr. 867. ages in actions for injury to the 5 Carter v. Wells, Fargo & Co., person or reputation. See note, 8 (1894) 64 Fed. 1005. See also Ann. Gas. 907. Phillips v. London & S. W. B. Co., 6 (1903) 122 la. 50, 97 N. W. (1879) L. B. 4 Q. B. D. 406. 96. 92 LAW OF DAMAGES most cases, the trial judge tries to prevent the rendering of a verdict for excessive or inadequate damages, by giving proper instructions on the measure of damages. But the court will not disturb the verdict by reason of the amount thereof, unless it is so grossly excessive or inadequate as to indicate passion or prejudice or igno- rance on the part of the jury. 7 The mere fact that the court would have given a con- siderably larger verdict than the jury has given, or the fact that the evidence would have warranted much larger damages, does not warrant the court in setting aside the verdict. 8 It is usually exceedingly difficult to induce a court to declare damages in a negligence case to be so inadequate as to justify the interference of the court, but sometimes the verdict is so clearly inadequate as to evince just as much prejudice as could ever be shown by an excessive verdict. 9 For an unjustifiable and intentional assault and bat- tery, the plaintiff is not restricted to nominal damages ; and a verdict for one dollar is, in such a case, so cle*arly inadequate as to justify setting it aside, even if the 7 Florence Hotel Co. v. Bumpus, however, that, according to the pro- (1915) 194 Ala. 69, 69 So. 566, cedure in most jurisdictions, the Ann. Cas. 1918 E 252. count would not increase the dam- 8 Lancaster v. Providence & S. ages, but would merely grant a new S. S. Co., (1886) 26 Fed. 233. trial. Likewise, in cases wherein 9 "In negligence cases the the jury has given excessive dam- court is averse to increasing the ages, the usual procedure is to verdicts of juries, who rarely un- grant a new trial; but, in some derestimate damages; but when the jurisdictions, it is a common prac- jury has failed to do justice, the tice for the court to permit a ver- court, in the exercise of its juris- diet for excessive damages to diction, must do it." Ford v. Min- stand, on the condition that the neapolis St. Ry. Co., (1906) 98 plaintiff consent to remit a certain Minn. 96, 107 N. W. 817, 8 Ann. portion of the amount. If the Cas. 902, citing Sullivan v. Vicks- plaintiff does not so consent, the burg, etc., B. Co., (1887) 39 La. verdict is set aside and a new Ann. 800, 2 So. 586, 4 Am. St. Rep. trial granted. 239. The student should notice, EXCESSIVE AND INADEQUATE DAMAGES 93 plaintiff has not had to consult a physician or to lose time. 10 30. Second Trial. A jury has no right to consider the fact that the trial being held is the second one in the cause. Juries sometimes seem to increase dam- ages by reason of the fact that the plaintiff is obliged to carry the matter through more than one trial in order to get damages, but this they have no right to do. 11 31. Effect of the Modern Tendency Toward High Prices. It would seem only natural and logical that, with the gradual and general, not to say universal, in- crease in prices during recent years, larger and larger verdicts should be allowed to stand in many kinds of cases ; and this is the tendency. For instance, in a per- sonal injury case, all of the pecuniary elements are larger in amount now than formerly. Physicians' and nurses' services, hospital accommodations, drugs, and any other things essential to proper treatment of a personal in- jury, have advanced in cost. The plaintiff's wages and earning power lost are worth much more, in terms of money, than they would have been a few years ago. The same is true in regard to property wrongfully taken or injured. In no field must more allowance be made for the fact that a case cited is old. Some of the judicial statements of forty years ago as to the high value of money, and the extreme reluctance of courts of that time to cause much money to change hands in the form of dam- ages, read today like antiquarian curiosities. 12 10 Ford v. Minneapolis St. Ry. Co. v. Payzant, (1877) 87 111. 125, Co., (1906) 98 Minn. 96, 107 N. W. in which it is said: "Twenty-five 817, 8 Ann. Cas. 902. hundred dollars is a very large sum 11 Davis v. McMillan, (1905) of money, which few men or women 142 Mich. 391, 105 N. W. 862, 3 accumulate in a lifetime." How L. R. A. (N. S.) 928, 7 Ann. Caa. extremely out of accord with pres- 854, 113 Am. St. Rep. 585. ent eeonomic conditions! 12 E. jr., Chicago, R. I. & P. R. The fact that the money value 94 LAW OF DAMAGES 32. Excessive Exemplary Damages stand on a footing similar to that of excessive compensatory damages, not being sustainable if so large as not to be warranted by all the circumstances of the case. In deciding whether such damages are excessive, the court must consider the amount of actual damage, the circumstances of aggrava- tion such as the degree of malice shown by the wrong- doer, and the wealth of the defendant. As the punitive element is not pecuniary and is not, in most jurisdictions, compensatory, it is not usually easy to induce a court to set aside as excessive a verdict for exemplary damages. ''In assessing such damages, the jury should consider the aggravating and mitigating circumstances, and may refuse to award any exemplary damages ; but if, in their judgment, such damages should be given, then the amount thereof is left to their discretion, subject, however, to the approval of the court, and if, in the judgment of the court, the damages awarded are too much, a remittitur may be required or a new trial ordered. ' ' 13 1. Plaintiff, upon becoming a passenger in a first-class coach of defendant, found all seats occupied, although not all were being used as seats. The conductor refused to see that a seat for plaintiff was vacated, accompanying his refusal with pro- fanity. Judgment for plaintiff for $75 affirmed. "That a jury- awarded the trivial sum complained of is proof positive that no undue prejudice existed against the corporation. Let the com- pany thank God, and take courage." 14 of life and health is appreciating on another point, (1918) 282 111. and the earning capacity of money 565, 118 N. E. 986. is steadily depreciating is a factor 13 Summers v. Keller, (1911) to be considered in determining 152 Mo. App. 626, 133 S. W. 1180. whether or not a verdict for death See also article by writer, "Exces- is excessive, and the result of pas- sive Exemplary Damages The Re- sion and prejudice on the part of lation of Exemplary to Compensa- the jury. Northern Trust Ca. v. tory Damages," 52 American Law Grand Trunk Western R. Co., Review 11. (1917) 207 Til. App. 11, reversed 14 Louisville, N. O. & T. Ry. EXCESSIVE AND INADEQUATE DAMAGES 95 2. Plaintiff, 28 or 29 years old, was able to work at his usual wages less than two months after his injury in question. His permanent injuries were : an injured hand, some of the bones of his left hand being broken ; a large gash over his left eye, with- out any evidence of a broken bone ; an injury to the back of his head ; and some impairment of sight in one eye, largely remedied by the use of glasses. He also suffered slight temporary mental derangement for a little less than three years, and a temporary injury to his ankle and knees. Held, that a verdict for $24,000 is grossly excessive and necessarily given under the influence of passion and prejudice, and that it is unconscionable to the extent of more than half that sum. 15 3. A university graduate in electrical engineering, 23 years old, healthy, intelligent, working as a lineman, was injured through the negligence of the defendant. A large amount of electricity passed through his body, making the muscles of a part of his body rigid, and later there developed involuntary shaking and jerking of the muscles of the arm, leg, and head, with pain and soreness. A condition of traumatic neurasthenia de- veloped. His condition improved, but an unreasoning dread of high-tension wires developed, which was likely to interfere with his work in his chosen profession. A verdict of $7,500 is not excessive. 1 6 4. Two of plaintiff's ribs were broken, and he suffered a con- tusion of hip and ankle. No permanent injury was shown. Held, that a verdict of $250 was not inadequate, though small. 17 5. ' ' Plaintiff was knocked senseless, his ear was cut in two, he received a severe gash on his head, his face was mashed and bruised, and his leg was severely sprained. After recovering consciousness, he was seized with vomiting, which continued for several hours. He was laid up for several days, suffering great pain, and incurring expenses for board and medical treat- ment, and did not fully recover for some weeks. It is absurd to consider this verdict of $100 as affording reparation for such Co. v. Patterson, (1891) 69 Miss. Power, etc., Co., (Vt. 1917) 99 Atl. 421, 13 So. 697, 22 L. B. A. 259. 1017. 15 Eoberts v. Pacific Telephone, 17 Lanier v. Hammond Lumber etc., Co., (1916) 93 Wash. 274, 160 Co., (1917) 141 La. 829. 75 So. Pac. 965. 738. 16 Summerskill v. Vermont 96 LAW OP DAMAGES injuries. Indeed, it would scantily compensate the trouble and expense of the lawsuit which he was compelled to bring in order to vindicate his rights. We think an addition of $500 to the ver- dict will 'mete out only moderate justice." 18 18 Sullivan v. Vicksburg, etc., K. Co., (1887) 39 La. Ann. 800, 2 So. 586, 4 Am. St. Bep. 239, CHAPTER IX LIQUIDATED DAMAGES AND PENALTIES 33. In General. Liquidated damages are damages settled upon as a stated sum, to be paid to one of the par- ties to a contract as compensation for a breach by the other party. Where a sum named is construed by a court as being liquidated damages, such sum is the amount of recovery for a breach. 1 A penalty, which differs in its nature very widely from liquidated damages, is a sum named in a contract, to be paid by a defaulting party as punishment for his breach. Unlike liquidated damages, a penalty is not regarded as constituting an agreed measure of compensation; it is considered as a punishment agreed npon beforehand. The practical purpose of the parties in naming such a sum, is to make the agreement for the penalty a kind of security for the performance of the contract. 2 If their purpose is to make a penal sum absolutely due in toto in case of breach, their purpose will not be given effect; a sum which would, on principles to be stated hereafter, be unreasonable and unconscionable, will not be in any way determinative of the amount to be assessed for a breach. A court does not feel itself compelled to regard a penalty as being either the maximum or minimum amount to be assessed for a breach, where the penalty is named in a mere contract, although it is regarded as the 1 Lowe v. Peers, (1768) 4 Burr. its breach, but rather as a punish- 2225, 98 Eng. Repr. 160. ment for default, or by way of se- 2 "A penalty, in contradis- r-urity for the actual damages tinetion to liquidated damages, is which may be sustained by reason a sum inserted in a contract, not of nonperformance. " 19 Am. & as the measure of compensation for Eng. Enc. of Law (2d ed.) 395. 97 98 LAW OF DAMAGES maximum of liability, where it is named in a penal bond. Where a sum named in a contract is construed by a court as being a penalty, it cannot be collected in full as a stated compensation; only damages for the actual loss occa- sioned by the default will be assessed, whether such dam- ages be greater or less than the penalty named. 3 Where a penalty is named in either a statutory undertaking 4 or a penal bond, the sum so named is the limit of recov- ery ; and, while a lesser amount may be recovered on the bond, a greater cannot be. 5 34. Language Not Conclusive. Where a sum is named as " liquidated damages," it may be held to be a penalty, despite the words of the parties ; 8 and, even where the 3 "Before the passage of 8 & 9 Win. Ill, in an action of debt on an agreement, performance of which was secured by a penalty, the recovery was for the entire penalty. Relief was solely in equi- ty, and originally was only granted in cases of fraud, extremity, or accident. The effect of this stat- ute was to put actions for the recovery of penalties for default in the performance of agreements on the same basis as actions di- rectly upon the agreement to re- cover damages, with respect to the quantum of recovery; in other words, to provide substantially the same measure of relief in an ac- tion at law as the defendant might have obtained in a court of equi- ty." 13 Cyc. 89. 4 Common examples of statu- tory undertaking are: the bond given by a plaintiff in an injunc- tion suit, as security to the de- fendant for damages caused by the issuance of an interlocutory injunc- tion, such damages, within the amount of the penalty, to be col- lected by the defendant if the in- junction is found to have been wrongfully issued; and the bond given for a very similar purpose in attachment or replevin. 5 Wood v. State, (1886) 66 Mel. 61, 5 Atl. 476; Fraser v. Little, (1865) 13 Mich. 195, 87 Am. Dec. 741. The latter case says, in re- gard to a replevin bond: "This statute, I think, fixes the limit of the sureties' liability, so that in executing a bond as surety, we must understand that he intends and only undertakes to become li- able to the extent of the penal sum mentioned, and no further, and that the statute requires nothing more from him." See also Parit v. Wallis, (1796) 2 U. S. 252, 1 L. ed. 370. 6 Grand Tower Co. v. Phillips, (1874) 23 Wall. (U. S.) 471, 23 L. ed. 71; Wyman v. Robinson, (1882) 73 Me. 384, 40 Am. Rep. 360; Wheatland v. Taylor, (1883) 29 Hun (N. Y.) 70. "The name by which it is called is of but slight weight." Kunkle I LIQUIDATED DAMAGES 99 sum is agreed upon "as liquidated damages, and not as a penalty," the court does not feel itself bound to give effect to the stipulation as for liquidated damages, and so may call the sum a penalty. 7 The use of the term "penalty" in a contract is not conclusive; 8 but it seems to be more nearly conclusive than does the use of the term "liquidated damages." 9 The terms "forfeit" and "forfeiture" are sometimes construed as for penalties, 10 and sometimes as for liqui- dated damages. 11 These and all other terms used in this connection, are not in themselves conclusive as to their intended meaning or as to the effect given them by a court. Circumstances play a part here, just as where the terms "penalty" and "liquidated damages" are used; and the intention of the parties must be gathered not only from the contract itself, but from circumstances. Furthermore, since not only the intention of the parties is relevant, but the reasonableness of any amount stated as liquidated damages, as we shall see, is also in issue, mere words are far from being the determining factor. 35. Liquidation of Damages Limited in Its Effect, Ac- cording to the Agreement of the Parties. Where the parties stipulate damages, the effect of their stipulation is limited to those contingencies which they have within their contemplation. Their stipulation of certain liqui- dated damages in the event of a breach, will not be of ef- v. Wherry, (1899) 189 Pa. 198, 42 771. The word "fine" has been Atl. 112. held to indicate a penalty. Laub- 7 Chicago House-Wrecking Co. enhehner v. Mann, (1865) 19 Wis. v. United States, (1901) 106 Fed. 519. An agreement "to forfeit 385, 45 C. C. A. 343, 53 L. B. A. and pay" has been held to liqui- 122. date damages. Cheddick's Execu- 8 Pierce v. Fuller, (811) 8 Mass. tor v. Marsh, (1848) 21 N. J. Law 223, 5 Am. Dec. 102. 463. 9 Tayloe v. Sandiford, (1822) 11 Hall v. Crowley, (1862) 5 7 Wheat. (U. S.) 13, 5 L. ed. 384. Allen (Mass.) 304, 81 Am. Dec. 10 Van Buren v. Digges. (1850) 745. 52 U. 8. (11 How.) 461, 13 L. ed. 100 LAW OF DAMAGES feet as to any other kind of breach than that kind for which the parties intend a liquidation of damages. A valid agreement for liquidated damages in a cer- tain sum per day for each day that a building remains uncompleted, does not, in the event of a total breach and abandonment by the contractor, authorize a permanent continuance of the accrual of the stipulated damages; for the other party must, within a reasonable time after the breach, take measures to avoid damage by procuring others to do the work. Furthermore, such an agreement is not available to bar the plaintiff from recovering the damages actually sustained by him, as it is, in such a case, the intention of the parties to have the liquidated dam- ages paid only on the actual but tardy completion of the work, and not upon its abandonment, which is a contin- gency not contemplated by the parties to such a contract. Abandonment brought an end to the agreement. 12 36. Principles of Differentiation. Whether a sum named is liquidated damages or is a penalty, is to be de- termined, it is usually said, by the actual intention of the parties. 13 Whether the stipulation is for liquidated dam- ages or for a penalty, may be gathered from the contract itself and from circumstances. The certainty or uncer- tainty of the amount of damage likely to result from a breach, and the reasonableness or unreasonableness of the amount named, are important. If the amount of damage to be suffered in case of breach is positively a certain sum, and the parties have named a sum mate- rially larger, it is clear that, notwithstanding any lan- guage they have used indicating otherwise and even not- withstanding any intention they may have had to con- stitute the sum liquidated damages, 14 they have stipulated 12 Murphy v. United States Fi- (1840) 11 N. H. 234; Slosson v. delity, etc., Co., (1905) 91 N. Y. Beadle, (1810) 7 Johns. 72. Supp. 582, 100 App. Div. 93. 14 Jaquith v. Hudson, (1858) 13 Chamberlain v. Bagley, 5 Mich. 123. "The real question LIQUIDATED DAMAGES 101 for a penalty. 15 A sum that is, under all circumstances, unconscionably large, will not be construed as liquidated damages. If the amount named as liquidated damages is such as may properly have been in the contemplation of the parties as only fair compensation in case of breach, the stipulation is construed as being for liqui- dated damages. 16 Where the parties have named a sum in this class of cases will ba found to be, not what the parties in- tended, but whether the sura is, in fact, in the nature of a penalty; and this is to be determined by the magnitude of the sum, in con- necticm with the subject matter, and not at all by the words or the understanding of the parties. The intention of the parties cannot al- ter it. While courts of law gave the penalty of the bond, the par- ties intended the payment of the penalty as much as they now in- tend the payment of stipulated damages; it must therefore, we think, be very obvious that the actual intention of the parties, in this class of cases, and relating to this point, is wholly immaterial; and though the courts have very generally processed to base their decisions upon the intention of the parties, that intention is not, and can not, be made the real basis of these decisions." Although the doctrine set forth in it is questionable, the following extract from a comparatively re- cent opinion of the United States Supreme Court is worthy of our no- tice: "The courts at one time seemed to be quite strong in their views, and would scarcely admit that there ever was a valid con- tract providing for liquidated dam- ages. Their tendency was to con- strue the language as a penalty, so that nothing but the actual dam- ages sustained by the party ag- grieved ccruld be recovered. Sub- sequently the courts became more tolerant of such provisions, and have now become strongly inclined to allow parties to make their orwn contracts and to carry out their in- tentions, even when it would result in the recovery of an amount stated as liquidated damages, upon proof of the violation of the contract, and without proof of the damages actually sustained. * * * The question always is: What did the parties intend by the language used? When such intention is as- certained, it is ordinarily the duty of the court to carry it out." United States v. Bethlehem Steel Co., (1907) 205 U. S. 105, 51 L. ed. 731, 27 Sup. Ct. 450; quoted with approval, Banta v. Stamford Motor Co., (1914) 89 Conn. 51, 92 Atl. 665. The statement in Jaquith v. Hudson seems more in accord with what courts have usually done in such cases than does the Banta case. 15 Kemble v. Farren, (1829) 6 Bing. 141, 130 Eng. Bepr. 1234. 16 Keeble v. Keeble, (1888) 85 Ala. 552, 5 So. 149; Monmouth Park Association v. Wallis Iron Works, (1893) 55 N. J. Law 132, 26 Atl. 140, 19 L. K. A. 456, 39 Am. St. Eep. 626; Curtis v. Van Bergh, 102 LAW OF DAMAGES so large as to be out of all proportion to any possible damage that might result from a breach, they have stip- ulated for a mere penalty, even though the exact amount of possible damage is uncertain. 17 So it is where A agrees to pay B $10 on a certain date, and to pay him $50 in case of default in payment, or where A agrees to supply B with $5 worth of sugar, and to pay B $100 in case of breach, it appearing that B could not be injured by the breach to an extent even approximating $100. Where two parties contract in regard to a number of de- tails, some of much importance and some of little, and agree that, upon a breach of the contract as to any detail, a certain sum shall be paid, the stipulation is for a penalty. 18 To hold otherwise might make it possible to collect a thousand dollars for damage that could not possibly exceed one dollar. Likewise, where an agree- ment contains various stipulations, damages for the breach of some stipulations being capable of measure- ment by a precise sum far below the amount stated, a (1899) 161 N. Y. 47, 55 N. E. 398; actually cost $200, and intimates Illinois Central E. Co. v. Southern that the same conclusion would Seating & Cabinet Ca, (1900) 104 have been reached if the breach Tenn. 568, 58 S. W. 303, 50 L. E. had occasioned a loss of only $20. A. 729. This case can hardly be said to be 17 Clement v. Schuylkill Eiver in accord with the weight of au- E. Co., (1890) 132 Pa. 445, 19 Atl. thority. Of course, it could never 274, 276. be laid down as a rule of law that 18 Kemble v. Farren, (1829) 6 liquidated damages could not be Bing. 141, 130 Eng. Eepr. 1234; given effect as such, merely be- Pye v. British Automobile Commer- cause it is seen at the time of the cial Syndicate Limited, L. E. I. K. trial that the actual loss is much B. 1906, 425. Mayor of Brunswick smaller than the amount named; v. Aetna Indenity Co., (1908) 4 but the contract involved in this Ga. App. 722, 62 S. E. 475; quoted case obvionsly covered many mat- with approval in George W. Muller tera of varying importance, and Bank Fixture Co. v. Georgia Ey. the sum named purported to be for & Electric Co., (1916) 145 Ga. 484, compensation for a breach of any 89 S. E. 615. But see Barrett v. stipulation, with no apparent dis- Monro, (1912) 69 Wash. 229, 124 crimination between matters great Pac. 369, which permits a party to and matters small. obtain $1200 for a breach that had LIQUIDATED DAMAGES 103 figure named to be paid in case of the non-performance of any part of the contract, is a penalty. 19 Where the intention is not clear to have it so, a sum named will not be regarded as liquidated damages. 20 In doubtful cases, courts feel that they can come nearer to administering real justice by calling the stipulated amount a penalty, since, by so doing, they can leave the question of amount of damages open and thus make it possible to assess actual damages as in an ordinary case wherein no stipulation of any sum has been made. 21 If the parties stipulate a certain amount as liquidated damages for an entire breach of the contract, and there follows a valid part performance, there can be a recovery of actual damages only, the amount stated as liquidated damages being of effect only in case of an entire breach. 22 37. Agreed Valuation. It sometimes happens that the parties to a contract agree that one of the parties shall return or deliver certain property to the other, and that if he does not, he will pay for it at an agreed valua- tion. The figure agreed upon is considered liquidated damages, and therefore it may be collected in full in case of default. 23 38. Deposits. A deposit made in order to insure per- formance of an agreement by the depositor, may be a penalty; it may be liquidated damages; or it may be neither. In order to determine whether the deposit is 19 Kemble v. Farren, (1829) as a penalty and not as liquidated 6 Bing. 141, 130 Eng. Eepr. 1234. damages, because then it may be 20 Colwell v. Lawrence, (1868) apportioned to the loss actually 38 N. Y. 71, 36 How. Pr. 306, aff. sustained." Shaw, C. J., in Shute 36 Barb. 643, 24 How. Pr. 324; v. Taylor, (1842) 5 Mete. (Mass.) Dennis v. Cummins, (1803) 3 Johns. 61. Gas. (N. Y.) 297, 2 Am. Dec. 160. 22 Shute v. Taylor, supra. 21 "In general, it is the ten- 23 Sun Printing & Publishing dency and preference of the law, Association v. Moore, (1902) 183 to regard a sum, stated to be pay- 17. S. 642, 46 L. ed. 366, 22 Sup. able if a contract is not fulfilled, Ct. 240. 104 LAW OF DAMAGES intended to be held as liquidated damages in case of a breach, the agreement and the circumstances must be considered, as in other cases/ 24 39. Illegal Stipulation of Damages. Sometimes parties have, in order to avoid statutory prohibition of usury, contracted for "liquidated damages" in a sum in excess of the amount permitted by law to be charged as interest. Such a stipulation, whatever the terms employed by the parties, is not enforced as for liquidated damages. It would not be public policy to permit, under a different name, the usury which is prohibited by statute. 25 40. Interest on Liquidated Damages. Since a stipu- lation for liquidated damages, when given effect as such, is for a stated sum, which has become due at a definite time, the date of the occurrence of the breach, it follows that interest on the liquidated damages from the time of the breach should be allowed, in any state in which in- terest is made a part of verdicts for sums liquidated and overdue ; 26 but this rule does not always prevail. 27 41. Alternative Agreements. - - Where one person merely agrees that he will do a certain act or that he will pay the other party to the agreement a certain sum of money, the contract is what is known as an alternative agreement, which is a matter neither of liquidated dam- ages nor of penalty. The amount stipulated in such an agreement is merely a price fixed for what the contract permits him to do if he pays. 28 24 Willson v. Mayor of Balti- 26 Little v. Banks, (1881) 85 more, (1896) 83 Md. 203, 34 Atl. N. Y. 258; Winch v. Mutual Benefit 774, 55 Am. St. Rep. 339; Caesar Ice Co., (1881) 86 N. Y. 618. v. Rubinson, (1903) 174 N. Y. 492, For general principles, see Chap- 67 N. E. 58. ter XXVI, "Interest." 25 Clark v. Kay, (1858) 26 Ga. 27 Hoagland v. Segur, (1876) 403; Chapman v. Comings, (1870) 38 N. J. Law 230. 43 Vt. 16. 28 Smith v. Bergenren, (1891) LIQUIDATED DAMAGES 105 CASE ILLUSTRATIONS 1. "I do hereby promise Mrs. Catherine Lowe, that I will not inarry with any person besides herself: if I do, I agree to pay to the said Catherine Lowe 1,000 within three months next after I shall marry anybody else." Held, a stipulation for li- quidated damages. 20 2. A sells a partnership interest to B, and contracts not to engage in the mercantile business in Trenton within three years, and agrees to forfeit $1,000 as damages for non-performance of the stipulation. Upon A's breaking the agreement, B can re- cover $1,000 damages, as the stipulation is in regard to damages of which the amount is uncertain and incapable of accurate proof in court. 30 3. Defendant covenants that he will pay plaintiff 1,000 "as and for liquidated damages and not by way of a penalty," if defendant shall violate his covenant not to practice surgery or reside within two and one-half miles of No. 28 Dorset-Crescent. Defendant takes up his residence a few feet within the prohibited distance. Plaintiff may recover the 1,000. Where a contract consists of stipulations, of which the breach cannot be measured, the sum named as liquidated damages is agreed upon as such, and not as a penalty. All the stipulations here were of uncer- tain value. 31 4. Defendant, selling his bakery to plaintiff for $1,400, con- tracted not to enter the bakery business within a radius of five blocks from the bakery sold, and agreed to pay plaintiff $2,000 in case of his violation of the agreement. Plaintiff being no longer in the bakery business in the city, defendant opened a bakery in the area prohibited by the contract. The $2,000 can- not be assessed as liquidated damages. The amount was not de- scribed in the contract as being either liquidated damages or a penalty; and, in such a case, the tendency of courts is to call it 153 Mass. 236, 26 N. E. 690, 10 30 Jaquith v. Hudson, (1858) L. E. A. 768; Pearson v. Williams' 5 Mich. 123. Administrators, (1840) 24 Wend. 31 Atkyns v. Kinnier, (1850) (N. Y.) 244. L. B. 4 Exch. 776. 29 Lorwe v. Peers, (1768) 4 Burr. 2225, 98 Eng. Bepr. 160. (Decided by Lord Mansfield.) 106 LAW OF DAMAGES a penalty. It also appears from the evidence that plaintiff suf- fered no damage from the breach. 32 5. Defendant sold his laundry to plaintiff,, agreeing not to engage in the laundry business in the city, for five years, with- out permission of plaintiff, and promising to pay plaintiff one dol- lar per day for the time he might so engage in business in viola- tion of the contract. Defendant violated the agreement. The one dollar per day is recoverable as liquidated damages. 33 6. Defendant contracted to build a pleasure yacht for plaintiff and to have it ready for delivery by September 1, 1911. De- fendant further agreed that he would pay the plaintiff $15 per day for any delay in delivery after the specified date. Held, liquidated damages. "The extent that the plaintiff might have been injured by delay in the completion of the yacht which he was desirous of using in the fall months for cruising in the Chesapeake and Florida waters, and the measure of it in money, both lie in a marked degree in the field of uncertainty. ' ' 34 7. A contractor agreed to erect a building for a church, and to pay $10 per day for any delay in completing it after September 1, 1913. Held, liquidated damages. 35 8. A agrees to build a pumping-station for a city, promising to pay $50 for each day of delay beyond the date agreed upon. Held, a contract for liquidated damages. "It is beyond question that there could be no estimate of damages or compensation for the inconvenience to the public or damage resulting from a failure to complete the contract as agreed, and if the parties did not intend that the stipulated sum should be liquidated damages they did not intend that any damages could be recovered, since none could be proved." 36 32 Eadloff v. Haase, (1902) 196 per week for each vessel not deliv- 111. 365, 63 N. E. 729. ered in contract time. Clydebank 33 Augusta Steam Laundry Co. Engineering Co. v. Don Jose Ramos v. Debow, (1904) 98 Me. 496, 57 Yzquierdo y Casteneda, L. B. 1905 Atl. 845. App. Gas. 6. 34 Banta v. Stamford Motor 35 Walsh v. Methodist Episco- Co., (1914) 89 Conn. 51, 92 Atl. pal Church South, (Tex. Civ. App. 665. So it was held to be liqui- 1915) 173 S. W. 241. dated damages, where C, contract- 36 Parker-Washington Co. v. ing to build torpedo-boat destroy- Chicago, (1915) 267 HI. 136, 107 ers for the Spanish government, N. E. 872, Ann. Gas. 1916 C 337. agreed to pay a "penalty" of 500 LIQUIDATED DAMAGES 107 9. Defendant contracted to furnish plaintiff, for use in build- ing a court house, $13,000 worth of terra cotta, to be manu- factured especially for the purpose; and defendant further agreed to pay plaintiff $50 ' ' liquidated damages ' ' for each day 's delay. For a delay of 29 days, the plaintiff cannot recover on the contract stipulation, since it is for a penalty and not for liquidated damages. 37 10. The defendant contracted to act as a principal comedian at the plaintiff's theater, during four seasons, and to conform to the regulations of said theater; and the plaintiff agreed to pay the defendant 3 6s. 8d. per night. The agreement contained a clause, that if either party should not fulfill the agreement, or any part thereof, or any stipulation therein, such party should pay the other the sum of 1,000 liquidated damages. The de- fendant refused to act during the second season. The jury assessed plaintiff's damages at 750. Plaintiff contends that he should have been awarded the 1,000 as liquidated damages. His contention is not sound ; the 1,000 is a penalty. The parties intended it to relate to even so ascertained and disproportionately small a matter as a single breach of plaintiff's duty to pay defendant his daily wage, or a mere violation of theater rules by defendant, for which such rules themselves set certain pen- alties. ' ' That a very large sum should become immediately pay- able, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction of terms. " 3S 11. A agreed to furnish B 1,000 pounds of milk each day for 5 years, for which defendants were to pay 12 cents per gallon. A further promised to pay as liquidated damages 5 cents per gallon not furnished. Held, liquidated damages. 39 12. A employed B as manager of a store, B agreeing not to become intoxicated, and, in the event of his becoming so, to pay $1,000 as liquidated damages. Held, that, upon becoming in- toxicated, B must pay A $1,000. The damage resulting from the 37 Northwestern Terra Cotta 39 Mondamin Meadows Dairy Tile Co. v. Caldwell, (1916) 234 Co. v. Brudi, (1904) 163 Ind. 642, Fed. 491. See note, 26 Yale L. J. 72 N. E. 643. 155. 38 Kemble v. Farren, (1829) 6 Bing. 141, 130 Eng. Bepr. 1234. 108 LAW OF DAMAGES breach could not be ascertained with any degree of certainty, and the amount agreed upon is not disproportionate to the damages which may have been actually sustained in this case. 40 13. Plaintiffs and defendants conducted rival department stores. Plaintiffs sold defendants $46,000 worth of goods, but remained in business under the name "Famous," as before. Defendants bound themselves in the penal sum of $5,000 as liquidated damages, not to advertise any other goods as having been bought from plaintiffs. Defendants violated the agree- ment, using the terms, "Famous," and "Famous Stock," in connection with goods not purchased of plaintiffs. The sum of $5,000 may be recovered as liquidated damages. 41 14. A & Co. leased to B an apartment house, at $600 per month, for 5 years, with a stipulation that B deposit with A & Co. $1,200, to be held hy lessors as an indemnity fund to be applied as liquidated damages for any loss lessors might sus- tain by reason of any violation by lessee. B fell into arrears 10 days in payment of rent. A & Co. brought suit for possession of the premises. B then surrendered, and brought an action to recover the $1,200 deposit. Held, that B cannot recover the $1,200 or any part of it, as the amount is not merely security for rent, but is liquidated damages. A loss of the tenancy of B might cause damage to lessors difficult of ascertainment, whether re- sulting from B's surrender or from A & Co.'s election to termi- nate the lease after B 's default. 42 15. Defendant agreed to convey a certain right of way to plaintiff, and gave a bond for $1,000 and $100 attorney's fees, to insure performance. As a matter of fact, plaintiff already had the right of way by prescription. Defendant did not convey. Plaintiff sues on the bond. Held, a penalty. "We have, then, a case where a bond provides for the payment of $1,000 as 'liquidated damages' for a breach, and the evidence shows that the breach could cause but nominal damages. ' ' 43 16. Plaintiff, an employee of defendant, agreed that, in the event of her quitting the employment, she would give two weeks' 40 Keeble v. Keeble, (1888) 85 Wash. 229, 124 Pac. 369. This case Ala. 552, 5 So. 149. is unsound. 41 May v. Crawford, (1898) 43 Dryer v. Kistler, (1912) 118 142 Mo. 390, 44 S. W. 260. Minn. 112, 136 N. W. 750. 42 Barrett v. Monro, (1912) 69 LIQUIDATED DAMAGES 109 notice of her intention to do so, and that, if she should fail to do so, the sum of $10 was agreed upon as liquidated damages to be paid to defendant. Her earnings were 50 cents per day. Her work was in a necessary department of a highly organized cotton mill, so that some loss would be likely to be suffered by defendant if plaintiff should cease work without notice. It would be impossible to calculate with any certainty what such loss would be. Held, liquidated damages. 44 17. Plaintiff and defendant entered into a contract, under which it was agreed that, in case of breach of any one of a num- ber of stipulations, a certain sum should become due as liquidated damages. Some of the stipulations were in regard to matters so trivial that a breach of them could not have caused plaintiff as much damage as the stipulated amount. Held, that this was an agreement for a penalty, and not for liquidated damages. 45 18. Defendant executed a bond "in the full and just sum of $500, liquidated damages," conditioned that he convey to plain- tiff, on demand, a certain 3,000 feet of land upon certain con- sideration. The land was later conveyed, but was found to con- tain nearly 500 feet less than the amount agreed upon. Plaintiff accepted this part performance and sued for the $500 on the bond. Held, that, as part performance had been accepted, the $500 could not be assessed as liquidated damages; and only the damages actually suffered could be assessed. 46 19. The Sun rented plaintiff's yacht for use as a dispatch boat in the Spanish-American war, agreeing to return it in good con- dition. The value of the yacht was agreed to be $75,000. The yacht was wrecked. The full agreed value may be recovered as liquidated damages. 47 20. "The defendant covenanted never to practice his pro- 44 Tennessee Mfg. Co. v. James, 45 Geo. W. Muller Bank Fix- (1892) 91 Tenn. 154, 18 S. W. 262, ture Co. v. Georgia Ry. & Electric 15 L. R. A. 211, 30 Am. St. Rep. Co., (1916) 145 Ga. 484, 89 S. E. 865. But an agreement to forfeit 615. all wages due at the time of the 46 Shute v. Taylor, (1842) 46 breach of a contract of employ- Mass. (5 Mete.) 61. ment, is for a penalty. Shrimpf 47 Sun Printing & Publishing v. Tennessee Mfg. Co., (1887) 86 Association v. Moore, (1902) 183 Tenn. 219, 6 S. W. 131; Richard- U. S. 642, 46 L. ed. 366, 22 Sup. son v. Woehler, (1872) 26 Mich. Ct. 240. 90. 110 LAW OF DAMAGES fession in Gloucester so long as the plaintiff should be in practice there, provided, however, that he should have the right to do so at any time after five years by paying the plaintiff $2,000, 'but not otherwise. ' This sum of $2,000 was not liquidated damages ; still less was it a penalty. It was not a sum to be paid in case the defendant broke his contract and did what he had agreed not to do. It was a price fixed for what the contract permitted him to do if he paid." This was an alternative contract. 48 21. A, a physician who had been suffering from a sore on his face, contracted with B, a specialist in certain diseases, that he would, in the event that B cured him, either give B a certificate of his skill and proficiency as a specialist in the treatment of the trouble from which A had suffered, or pay him $5,000 in cash. Held, that this is not an agreement for a penalty, but that it is a mere alternative agreement. 49 48 Smith v. Bergenren, (1891) 49 Burgoon v. Johnston, (1899) 153 Mass. 236, 26 N. E. 690, 10 194 Pa. St. 61, 45 Atl. 65. L. B. A. 768. CHAPTER X NOMINAL DAMAGES 42. In General. Nominal damages may be given for an invasion of a legal right, whether by breach of con- tract * or by tort, 2 where resulting damage is trivial, 3 inappreciable, 4 or wholly absent. 5 Even where defend- ant 's wrong results in a net benefit to plaintiff, there is a right to nominal damages. 6 In any case in which there is a mere technical right of action, no more than nominal damages may be awarded. 7 Some very important ac- tions are brought purely for the purpose of establishing a right or of preventing a trespasser from continuing a trespass, harmless in itself, but a possible basis of an easement dominating plaintiff's property. In such cases, nominal damages are assessed. 8 Such damages are also awarded where there has been 1 Tufts v. Bennett, (1895) 163 6 Jewett v. Whitney, (1857) 43 Mass. 398, 40 N. E. 172. Me. 242; Murphy v. Fondulac, 2 Foster v. Elliott, (1871) 33 (1868) 23 Wis. 365. la. 216; Hooten v. Barnard, (1884) 7 Haven v. Beidler Mfg. Co., 137 Mass. 36. (1879) 40 Mich. 286. Second Con- 3 Southern Ry. Co. v. Cartledge, gregational Society v. Howard, (Ga. App. 1912) 73 S. E. 703; (1834) 33 Mass. (16 Pick.) 206, White v. Stanbro, (1874) 73 111. holds that where a grantor wrong- 575; Bartolini v. Grays Harbor, fully takes a deed from grantee's etc., Co., (1915) 88 Wash. 341, 153 possession, he is liable in trespass Pac. 4. for nominal damages only, as the 4 Cory v. Silcox, (1854) 6 Ind. trespass did noi deprive the grantee 39. of title to the land. See also 5 Slingerland v. International Frothingham v. Everton, (1841) 12 Contracting Co., (1901) 169 N. Y. N. H. 239. 60, 61 N. E. 995, 56 L. E. A. 494. 8 Peck v. Clark, (1886) 142 See also opinion of Holt, C. J., in Mass. 436, 8 N. E. 335. Ashby v. White, (1703) 2 Ld. Raym. 938, 92 Eng. Repr. 126. Ill 112 LAW OF DAMAGES an invasion of a legal right, resulting in damage of which the amount is either incapable of proof or has not been proved on the trial. Where damages sought to be recov- ered are only speculative and uncertain, no more than nominal damages can be awarded. 9 The rules of cer- tainty, elsewhere stated, 10 preclude the recovery of com- pensatory damages in such cases. Mere inability of plaintiff to prove the exact amount of his damage, will not, however, limit his recovery to nominal damages. 11 It sometimes happens, where the damages claimed are for a pecuniary loss, that, through an oversight of plain- tiff's attorney, or otherwise, there is a total failure of the plaintiff to prove damage or the amount thereof, even where he has abundantly proved an invasion of his legal rights. In such a case, obviously, the court cannot permit the jury to speculate upon the fact of damage or the extent of it and to render a verdict for substantial damages, the amount being the result of wild guesswork ; so the court must instruct the jury to find a verdict for nominal damages only; and, in the event of a finding of substantial damages, the verdict must be set aside. 11 Where the loss is pecuniary and is present and actual and can be measured, but no evidence is given showing its extent, or from which it can be inferred, the jury can allow nominal damages only." 12 43. Importance of the Question Whether Damage Is the Gist of the Action. In determining whether nominal damages may be awarded in the total absence of damage, 9 Chamberlain v. Parker, (1871) v. Davis, (1889) 117 Ind. 307, 20 45 N. Y. 569. N. E. 159; Stevens v. Yale, (1897) 10 See Chapter VI. 113 Mich. 680, 72 N. W. 5; Peek 11 Jenkins v. Pennsylvania R. v. Northern Pacific Ry. Co., (1915) Co., (1902) 67 N. J. Law 331, 51 51 Mont. 295, 152 Pac. 421; Cham- Atl. 704, 57 L. R. A. 309. berlain v. Parker, (1871) 45 N. Y. 12 Leeds v. Metropolitan Gas- 569; Kies v. Binghamton R. Co., light Co., (1882) 90 N. Y. 26. (1917) 163 N. Y. Supp. 736. See also: State ex rel. Lowery NOMINAL DAMAGES 113 one must always ascertain within what class the case falls. If the wrong done is such as to be actionable only if damage is done, or, to state it another way, if damage is the gist of the action, of course not even nominal dam- ages can be awarded unless some actual damage is shown. Therefore, there is, properly speaking, no such thing as nominal damages in these cases. If damage in such a case is trivial, it is properly the basis of small compensatory damages, although the difference between the amount of such damages and nominal damages is, in some cases, either nothing or so small as to cause courts occasionally to treat them as nominal damages. On the other hand, there are many wrongs that are actionable per se; that is, they are actionable even if no damage is done. Such are assault, battery, slander and libel (if the words used are actionable per se), seduction, false imprisonment, trespass to personalty or realty, and breach of contract. In such cases, even if no actual dam- age is proved, nominal damages may be recovered. 44. Nominal Damages and Small Damages. 13 Very small damages for an injury that is trivial but actual, are often treated as a kind of nominal damages ; 14 but a distinction between small damages and nominal damages is logical and proper. Such a distinction is stated in a Connecticut case, the court saying: ''Small damages, however, and nominal damages, do not mean the same thing. Where there is a real right involved, the dam- ages, even if very small, are substantial and not nominal." 15 13 See article by the writer, 18 Johns. (N. Y.) 129, 6 N. Y. "Are Small Compensatory Dam- Com. Law 532. ages Merely Nominal?" 51 Am. 15 Chapin v. Babcoek, (1896) Law Rev. 37, and cases there 67 Conn. 255, 34 Atl. 1039. See 4 cited. Sedg. on Dam. (9th ed.) 165, citing 14 White v. Stanbro, (1874) 73 Tri-State T. & T. Co. v. Cosgrif, 111. 575; Cady v. Fairchild, (1820) (1909) 19 N. Dak. 771, 124 N. W. Bauer Dam. 8 114 LAW OF DAMAGES 45. Where Plaintiff's Case Is so Small as Not to Justify even Nominal Damages. Some cases have arisen in which the encroachment upon the plaintiff's right has been so trivial and the resulting damage so very small, that the court has ruled that not even nominal damages are recoverable, following the well known maxim, "de minimis non cur at lex." le 46. Plaintiff's Right to a New Trial. A court will not remand a case for a new trial, where the sole error is the failure to award nominal damages, if a judgment for them would not have carried costs. 17 " Unless some sub- stantial right beyond damages is involved, the court will not reverse a judgment against the plaintiff merely for the purpose of enabling him to obtain nominal damages, when it is quite clear from the case presented that he would be entitled to no more." 18 Where the recovery 75, 26 L. E. A. (N. S.) 1171. See also Wartman v. Swindell, (1892) 54 N. J. Law 589, 25 Atl. 356, 18 L. B. A. 44; where the court says: "I am not prepared to say that a verdict for substantial damages would not have been justifiable," although the evidence seemed to indicate very small damage. Small amount paid for a sleeping- car ticket, of which amount pas- senger was entitled to a return upon his justifiable exclusion from the car, was held to be substantial damages, as contradistinguished from nominal damages. Pullman Car Co. v. Krauss, (1906) 145 Ala. 395, 40 So. 398, 4 L. R. A. (N. 8.) 103, 8 Ann. Gas. 218. 16 Paul v. Slason, (1850) 22 Vt. 231, 54 Am. Dec. 75. The doc- trine in P&ul v. Slason seems ques- tionable, there being much room for argument that, there being a trespass, and damage not being the gist of trespass, at least nominal damages must be assessed. The law is well stated in Wartman v. Swindell, supra. 17 Blackburn v. Alabama, etc., E. Co., (1904) 143 Ala. 346, 39 So. 345, 5 Ann. Gas. 223; Haven v. Beidler Mfg. Co., (1879) 40 Mich. 286. See note on "Failure to Give Nominal Damages as Eeversible Error," 5 Ann. Gas. 225. 18 Eambaut v. Irving National Bank, (1899) 42 N. Y. App. Div. 143, 58 N. Y. Supp. 1056, citing Stephens v. Wider, (1865) 32 N. Y. 351. See also Cady v. Fairchild, (1820) 18 Johns. (N. Y.) 129, 6 N. Y. Com. Law 532. An interesting corollary ta the general rule is presented in Kramer v. Perkins, (1907) 102 Minn. 455, 113 N. W. 1062, 15 L. E. A. (N. 8.) 1141. NOMINAL DAMAGES 115 of nominal damages would enable the plaintiff to get costs, there is a conflict of authority as to whether a re- versal should be granted plaintiff in order that he may have costs. 19 In "hard actions," a new trial will not be granted for a mere failure to award nominal damages, even where the assessment of nominal damages would have carried costs. 20 If the failure of the jury to assess nominal damages has deprived plaintiff of a substantial or permanent right, he has a right to a reversal. 21 CASE ILLUSTRATIONS 1. The plaintiff held a pew in a meeting-house, which was in such a ruinous condition that it could not be used as a house of worship. The defendant tore up and destroyed the pew, together with other pews. The plaintiff can get nominal damages only, as he had only a right to occupy his pew during public worship, and the facts showed that there was no such worship in the meeting- house. 22 2. A collecting agent failed to return to his principal a note of which the maker was insolvent. The agent is liable to the principal in nominal damages only. 23 3. A party was deprived of the use of gas. It appeared that 19 East Moline Co. v. "Weir fender in the shape of damages. Plow Co., (1899) 95 Fed. 250, 37 To this belong most actions aris- C. C. A. 62; Hickey v. Baird, ing ex delicto. Trespass, slander, (1860) 9 Mich. 32; Stevens v. Yale, libel, seduction, malicious prosecu- (1897) 113 Mich. 680, 72 N. W. tion, criminal conversation, deceit, 5; hold that where nominal dam- grass negligence, actions upon the ages should have been awarded and statute, or qui tarn actions, prose- would have carried costs, judgment cuted by informers, and penal ac- for defendant is reversible error. tions, prosecuted by special bodies, 20 For a discussion of this or the public at large, are ranged point, see Jones v. King, (1873) under this head." 1 Graham & 33 Wis. 422. Waterman on New Trials, 503 (ch. "Hard actions strictly include 14), quoted in Jones v. King, supra, only civil proceedings, involving in 21 Merrill v. Dibble, (1882) 12 their nature some peculiar hard- HI. App. 85. ship, arising from the odium at- 22 Howe v. Stevens, (1875) 47 tached to the alleged offense, or Vt. 262. the severity of the punishment 23 Brumble v. Brown, (1875) 73 which the law inflicts on the of- N. Car. 476. 116 LAW OF DAMAGES the aggrieved party used lamps and lanterns as a substitute, which were cheaper than gas. The gas company, who had pre- vented the use of the gas, was not liable for more than nominal damages, in the absence of proof of damage. 24 4. The defendant's clerk fraudulently sold very cheap and inferior cigars in boxes bearing the plaintiff's trademark, in order to injure the plaintiff and the reputation of the plaintiff's cigars. No evidence was given as to the amount of damage, and accurate proof on the point was impossible. The plaintiff can recover at least nominal damages, as he has suffered an infrac- tion of a legal right. 25 5. In an action for damage caused by the defendants to plain- tiff's concrete mixing machine, proof was made of the market value of the machine at the time it was taken by defendants, but such value included parts not taken. No evidence was given as to the value of such parts. Evidence was also given as to the market value of the machine at the time of its return. But no proof was made of its market value at the time of the taking, without the parts not taken, and no facts were given in evidence from which such value could be computed. Held, that only nominal damages could be awarded. 26 6. The plaintiff sued to recover damages for breach of a con- tract under which the defendants agreed to employ her for three years as an actress, and to pay her one half of the general profits of the business, in addition to certain expenses. The plaintiff, even in the absence of proof of quantum of damages, or even if performance would have been a positive injury to her, has a right to nominal damages, but a judgment for the defendant on the merits will not be disturbed in order to have such damages assessed. 27 24 Detroit Gas Co. v. Moreton 26 Northwestern Equipment Co. Truck & Storage Co., (1897) 111 v. Sofe, (1916) 91 Wash. 118, 157 Mich. 401, 69 N. W. 659. Pac. 459. 2o Lampert v. Judge & Dolph 27 Ellsler v. Brooks, (1886) 54 Drug Co., (1911) 238 Mo. 409, 141 N. Y. Super. Ct. (22 Jones & S.) S. W. 1095, 37 L. K. A. (N. S.) 73. 533, Ann. Cas. 1913 A 351. CHAPTER XI EXEMPLARY DAMAGES 47. In General. Exemplary, punitive, punitory, or vin- dictive damages are damages over and above compensa- tion, assessed for the purpose of punishing the defend- ant wrongdoer, where he is guilty of actual malice, de- liberate violence, oppression, wantonness, recklessness, or fraud. 1 Such damages, now allowed in most jurisdic- tions, are assessed only in cases of tort and breach of promise to marry. 2 It seems that the doctrine that a 1 All these elements are re- garded as being or implying malice in law. See section on "Malice," post, p. 122. "In this court the doctrine is well settled that in ac- tions of tort the jury, in addition to the sum awarded by way of com- pensation for the plaintiff's injury, may award exemplary, punitive, or vindictive damages, sometimes called 'smart money,' if the de- fendant has acted wantonly, or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obli- gations." Lake Shore & M. S. Ey. Co. v. Prentice, (1893) 147 U. S. 101, 13 Sup. Ct. 261, 37 L. ed. 97. 2 For the allowance of exem- plary damages for breach of prom- ise to marry, see Chellis v. Chap- man, (1891) 125 N. Y. 214, 26 N. E. 308, 11 L. B. A. 784. Tortious elements involved in such a ease cause the assessment of exemplary damages. For breach of duty of a carrier, accompanied by insult, in- dignity, or gross negligence, such damages are allowed in many in- stances; but most of such cases can be sustained on the ground that a tortious wrong has been inflicted, in addition to, or independently of, the breach of contract. Besides, the breach of a common carrier's contract may at the same time be a breach of a common law duty and therefore a tort. Alabama, etc., E. Co. v. Sellers, (1890) 93 Ala. 9, 9 So. 375, 30 Am. St. Eep. 17; Pittsburgh, etc., E. Co. v. Lyon, (1889) 123 Pa. 140, 16 Atl. 607, 2 L. E. A. 489, 10 Am. St. Rep. 517; Milhouse v. Southern Ry., (1905) 72 S. Car. 442, 52 S. E. 41, 110 Am. St. Rep. 620. One court has, how- ever, allowed exemplary damages expressly on the ground of a breach of the carrier 's contract. Knox- ville Traction Co. v. Lane, (1899) 103 Tenn. 376, 53 S. W. 557, 46 L. B. A. 549. 117 118 LAW OF DAMAGES jury may lawfully award exemplary damages grew out of the extreme reluctance of early courts to interfere with the verdicts of juries in tort cases, when urged to set aside such verdicts on the ground that the damages awarded were excessive. 3 The express rule that dam- ages may be awarded for punishment and example is a distinct anomaly. The early common law theory, how- ever far this may have been from fact in the practice of juries, probably was that damages were entirely compen- satory. That damages are for compensation only, is the frequently quoted theory of Mr. Greenleaf. 4 Sedgwick, however, favors the doctrine of exemplary damages ; 5 and Sutherland seems to uphold the doctrine on the ground that a malicious tort may cause more damage than a tort without malice, which makes exemplary dam- ages, in theory, merely compensatory. 6 The strongest objection to the doctrine of exemplary damages, inde- pendent of statute, is that it has no positive basis in the early common law; but, however sound this objection is, so many cases within the past century and a half have recognized the rule, that, in most states, dissent from it is of only academic interest. It has often been argued that the assessment of exem- plary damages is objectionable, as the defendant may thus be punished without the benefit of the rules of the substantive criminal law and of evidence and procedure applicable to a criminal trial, guaranteed to a criminal defendant by statutory and constitutional provisions. In support of this contention, it is said that, by the assessment of damages for punishment, a defendant may be practically fined without any limit such as is usually provided by criminal statutes ; and that he may thus be punished without either indictment or information, with- out the opportunity to meet witnesses against him face 3 See Chapter VUI, ' ' Excessive 4 Greenleaf , Ev. 253. and Inadequate Damages," and 5 1 Sedg. Dam. (7th ed.), P- 53. cases there cited. 6 Suth. Dam. 390. EXEMPLARY DAMAGES 119 to face, and without proof of his guilt beyond a reason- able doubt ; and all this notwithstanding the fact that he is liable criminally or has actually been punished crimi- nally for the same offense. However valid on ethical grounds these objections may be, according to the weight of legal authority, they are disposed of by the principle that an act which is both a tort and a crime is, in theory, two offenses, one cognizable in a civil and the other in a criminal proceeding. Yet some courts, while recogniz- ing the general doctrine of exemplary damages, refuse to assess such damages against a defendant who has been or may be punished criminally for the same act. 7 It has also been urged that it is unjust that, in order to punish a defendant, his money should be taken from him and given to the plaintiff; 8 but most courts and public opinion, as expressed in statutes in some states, have taken the view that the assessment of exemplary dam- ages, in appropriate cases, is eminently just. In most jurisdictions, none of these objections has prevented the operation of the general rule. Whether the principle of exemplary damages is sound or not, it is usually followed. In cases in which damages are very uncertain, for instance, those in which the physical or mental suffering of the plaintiff is an element, it is doubtful whether the practical power of the jury or the size of verdicts is increased by the adoption of the rule of exemplary damages; for, in such cases, a jury may give a very large verdict, with little probability that the court will set it aside as excessive. 9 7 See cases cited in note 14, Boyer v. Barr, (1878) 8 Neb. 68, this chapter. 30 Am. Kep. 814. 8 For a presentation of various 9 See Chapter VIII, "Exces- objections to the doctrine, see the sive and Inadequate Damages." famous case, Spokane Truck & But verdicts for even exemplary Dray Co. v. Hoefer, (1891) 2 Wash. damages may be reduced or set 45, 25 Pac. 1072, 11 L. E. A. 689, aside as excessive; see article by 26 Am. St. Rep. 842. See also writer, "Excessive Exemplary 120 LAW OF DAMAGES The general doctrine that damages exceeding compen- sation may be awarded for the purpose of punishment and example, in cases of malicious torts, has the support of the decided weight of authority. 10 A few supreme courts have denied the doctrine as a rule of the common law; 11 some have so defined exemplary damages as to make them purely compensatory and therefore not ex- emplary at all; and some have placed important restric- tions upon the operation of the general rule. 12 The prin- ciple, having no positive support in the early common law and no clear demarcation in the earliest cases affirm- ing it, is far from constituting a uniform rule in the various jurisdictions, having divers limitations placed upon it by different courts. 13 Some of these limitations will be noticed in the paragraphs following. Damages The Relation of Exem- plary to Compensatory Damages," 52 American Law Eeview 11. 10 Huckle v. Money, (1763) 2 Wils. 205, 95 Eng. Repr. 768; Merest v. Harvey, (1814) 5 Taunt. 442, 128 Eng. Repr. 761; Sears v. Lyons, (1818) 2 Starkie 317, 8 E. R. C. 363; Day v. Woodworth, (1851) 13 How. (U. S.) 363, 14 L. ed. 181; Lake Shore & M. S. Ry. Co. v. Prentice, (1893) 147 U. S. 101, 13 Sup. Ct. 261, 37 L. ed. 97; Goddard v. Grand Trunk Railway, (1869) 57 Me. 202, 2 Am. Rep. 39; Wort v. Jenkins, (1817) 14 Johns. (N. Y.) 352; Genay v. Norris, (1784) 1 Bay (S. Car.) 6. Some states have exemplary damages by statute; e. g. Colorado and Georgia. 11 Greeley, etc., R. Co. v. Yea- ger, (1888) 11 Col. 345, 18 Pac. 211; Hewlett v. Tuttle, (1890) 15 Col. 454, 24 Pac. 921; Bee Publish- ing Co. v. World Publishing Co., (1900) 59 Neb. 713, 82 N. W. 28; Spokane & Dray Co. v. Hoefer, (1891) 2 Wash. 45, 25 Pac. 1072, 11 L. R. A. 689, 26 Am. St. Rep. 842; Corcoran v. Postal Telegraph, etc., Co., (1914) 80 Wash. 570, 142 Pae. 29. 12 Smith v. Holcomb, (1868) 99 Mass. 552; Ellis v. Brockton Co., (1-908) 198 Mass. 538, 84 N. E. 1018; Detroit Daily Post Co. v. McArthur, (1868) 16 Mich. 447; Welch v. Ware, (1875) 32 Mich. 84; Beck v. Thompson, (1888) 31 W. Va. 459, 7 S. E. 447, 13 Am. St. Rep. 870; holding that exemplary damages can be assessed only as compensation for the aggravation of the injury caused by the de- fendant 's malice. See also Maisen- backer v. Society Concordia, (1899) 71 Conn. 369, 42 Atl. 67, 71 Am. St. Rep. 213; holding that exemplary damages cannot exceed the plain- tiff's expenses of litigation, less his taxable costs. 13 See article by the writer, 82 Central Law Journal 262. EXEMPLARY DAMAGES 121 48. For Acts Punishable Criminally. Some courts hold that exemplary damages cannot be awarded in a tori case based upon facts which make the defendant punish- able criminally. 14 In Pennsylvania, it is held that, if defendant has been convicted of a criminal offense grow- ing out of the same acts, the record showing conviction and sentence may be offered in evidence and considered by the jury in mitigation of exemplary damages. 15 The weight of authority is that criminal liability for the same act does not prevent the assessment of exemplary dam- ages, 16 and that the fact of the infliction of punishment in a criminal proceeding is not admissible in evidence to mitigate damages. 17 49. Predicated Upon Actual Damage? Exemplary damages are not generally held recoverable unless there is proof of actual damage. 18 What constitutes actual 14 Taber v. Hutson, (1854) 5 Ind. 322, 61 Am. Dec. 96; Wabash Printing & Publishing Co. v. Crum- rine, (1889) 123 Ind. 89, 21 N. E. 904; Anderson v. Evansville Brew- ing Ass'n, (Ind. App. 1912) 97 N. E. 445; Indianapolis Bleaching Co. v. McMillan, (Ind. 1916) 113 N. E. 1019, 83 Cent. Law J. 427; Patter- son v. New Orleans, etc., Co., (1903) 110 La. 797, 34 So. 782; Austin v. Wilson, (1849) 4 Gush. (Mass.) 273, 50 Am. Dec. 766; Fay v. Parker, (1873) 53 N. H. 342, 16 Am. Eep. 270. 15 Wirsing v. Smith, (1908) 222 Pa. 8, 70 Atl. 906. 16 Brown v. Evans, (1883) 17 Fed. 912; aff. 109 U. S. 180, 27 L. ed. 898, 3 Sup. Ct. 83; Smith v. Bagwell, (1882) 19 Fla. 117, 45 Am. Rep. 12; Brannon v. Silver- nail, (1876) 81 111. 434; Hauser v. Griffith, (1897) 102 la. 215, 71 N. W. 223; Barr v. Moore, (1878) 87 Pa. 385, 30 Am. Eep. 367. 17 Hoadley v. Watson, (1873) 45 Vt. 289, 12 Am. Eep. 197; Klopfer v. Bronnme, (1870) 26 Wis. 372. 18 Freese v. Tripp, (1873) 70 111. 496 (under a statute imposing civil liability upon liquor dealers for selling intoxicants to drunk- ards) ; Kuhn v. Chicago, etc., Ry. Co., (1888) 74 la. 137, 37 N. W. 116; Schippel v. Norton, (1888) 38 Kan. 567, 16 Pac. 804; Somdegard v. Martin, (1910) 83 Kan. 275, 111 Pac. 442; Bethea v. Western Union Telegraph Co., (1914) 97 S. Car. 385, 81 S. E. 675. Contra: Press Publishing Co. v. Monroe, (1896) 73 Fed. 196, 19 C. C. A. 429, 38 U. S. App. 410, 51 L. E. A. 353; Ala- bama Great Southern E. Co. v. Sellers, (1890) 93 Ala. 9, 9 So. 375, 30 Am. St. Eep. 17. Where a ver- 122 LAW OF DAMAGES damage sufficient to form a basis for the assessment of exemplary damages, is a question on which the courts are divided; some holding that "nominal actual" dam- age is sufficient, 19 and others holding contra. 20 There is some confusion in the use of the term "nominal dam- ages" in the cases involving this point, some courts seem- ing to regard nominal damages as based upon some slight damage, and other courts considering nominal dam- ages a clear indication that the plaintiff has proved only the invasion of a legal right, with no actual damage. 21 Mental anguish, anxiety, and distress of mind have been held not to furnish a sufficient basis for an allowance of exemplary damages, where no physical damage is shown. 22 It has sometimes been held that exemplary damages are not recoverable where the actual damage is capable of accurate pecuniary estimation. 23 50. Malice. Malice, in cases wherein the assessment of exemplary damages is appropriate, is of two kinds: diet was for plaintiff, the jury 409, 141 S. W. 1095, Ann. Gas. finding such facts as would have 1913 A 351, 37 L. R. A. (N. S.) entitled the plaintiff to actual dam- 533; Saunders v. Gilbert, (1911) ages, but assessing exemplary dam- 156 N. Car. 463, 72 S. E. 610, 38 ages only, the error of failure to L. R. A. (N. S.) 404. assess actual damages was favor- 20 Stacy v. Portland Publishing able to defendant and therefore, Co., (1878) 68 Me. 279. from defendant's standpoint, harm- 21 See article by author, "Are less error, though, from the plain- Small Compensatory Damages tiff's standpoint, the error was Merely Nominal," 51 Am. Law reversible. Adams v. St. Louis, Rev. 37. etc., R. Co., (Mo. App. 1910) 130 22 West v. Western Union Tele- S. W. 48. In Louisville, etc., R. graph Co., (1888) 39 Kan. 93, 17 Co. v. Ritchel, (1912) 148 Ky. 701, Pac. 807, 7 Am. St. Rep. 530; 147 S. W. 411, Ann. Gas. 1913 E Ramey v. Western Union Telegraph 517, 41 L. R. A. (N. S.) 958, actual Co., (1915) 94 Kan. 196, 146 Pac. damage was proved, but a verdict 421. was rendered for exemplary dam- 23 Durfee v. Newkirk, (1890) ages only; yet the verdict was held 83 Mich. 522, 47 N. W. 351; which good as against the defendant. was in trespass on the case, but 19 Wilson v. Vaughn (1885) 23 really grew out of a contract of Fed. 229; Lampert v. Judge & sale. See also Michaelis v. Mich- Dolph Drug Co., (1911) 238 Mo. aelis, (1890) 43 Minn. 123, 44 N. EXEMPLARY DAMAGES 123 actual malice, which is malice in fact, or malice in the ordinary sense; and implied malice, which is malice in law, or that which the law regards as being or implying malice. 24 " Whatever is done willfully and purposely, if it be at the same time wrong and unlawful, and that known to the party, is in legal contemplation malicious. That which is done contrary to one's own conviction of duty, or with a wilful disregard of the rights of others, whether it be to compass some lawful end by unlawful means, or, in the language of the charge, to do a wrong and unlawful act knowing it to be such, constitutes legal malice." 25 It has often been held that gross negligence is a ground for the assessment of exemplary damages; but it would probably be more accurate to say that it is considered as evidence of such recklessness and wanton- ness as will amount to legal malice, or, as is sometimes stated, "the element of willfulness or conscious indiffer- ence to consequences, from which malice may be in- ferred. " 26 ' ' In order to warrant the recovery of puni- W. 1149. Contra: Summers v. Kel- states the law thus: "Negligence, ler, (1911) 152 Ma. App. 626, 133 however gross, will not justify a S. W. 1180. verdict for exemplary damages, 24 See discussion, Sutherland unless the negligent party is on Damages, 394. guilty of willfulness, wantonness 25 Shaw, C. J., in Willis v. or conscious indifference to comse- Noyes, (1832) 12 Pick. (Mass.) quences from which malice will be 324; approved in Lynd v. Picket, inferred." Arkansas, etc., By. Co. (1862) 7 Minn. 184, Gil. 128, 82 v. Stroude, (1905) 77 Ark. 109, 91 Am. Dec. 79; and Anderson v. In- S. W. 18, 113 Am. St. Eep. 130. If ternational Harvester Co., (1908) this means that there must always 104 Minn. 49, 116 N. W. 101, 16 be proof of willfulness, etc., in ad- L. R. A. (N. S.) 440; with which dition to proof of gross negligence, see L. B. A. note. See discussions the proposition seems to be a of malice as a ground erf exemplary doubtful one, as negligence may damages, in Davis v. Hearst, be so gross as to raise a presump- (1911) 160 Cal. 143, 116 Pac. 530; tion of legal malice. For an in- and McNamara v. St. Louis Tran- stance of the assessment of exem- sit Co., (1904) 182 Mo. 676, 81 S. plary damages for "wilful negli- W. 880, 66 L. B. A. 486. gence," see Emblen v. Myers, 26 St. Louis, etc., By. Co. v. (1860) 6 Hurl. & N. 54, 158 Eng. Hall, (1890) 53 Ark. 7, 13 S. W. Bepr. 23. 138. A case following this one 124 LAW OF DAMAGES tive or exemplary damages because of the negligence of the defendant, such negligence must be so gross as to amount to wantonness, where no willful or malicious acts are proven. " 27 In a jurisdiction holding the in- ducing of a breach of another's contract to be a tort, it has been held that the intention of the defendant to pro- cure a contract with plaintiff for himself, instead of plaintiff's existing contract, of which defendant caused the breach is not such malice as to sustain an award of exemplary damages. 28 Where there is neither actual nor legal malice on the part of the person against whom the damages are to be assessed, exemplary damages cannot be awarded. So, where a wrongful act has been committed by mistake or under a bona fide claim of right, 29 without malice, there is no ground for exemplary damages. Likewise, only compensatory damages can be assessed against a young child 30 or an insane person, 31 since, in such a case, the defendant is incapable of entertaining such malice as to make the assessment of greater damages proper. If the defendant dies before trial, where the action survives against his representatives, the recovery is limited to compensation ; 32 which is on the ground that exemplary damages, being for punishment, cannot properly be taken 27 Atcbison, etc., Ey. Co. v. lin Plant Farm v. Nash, (1915) 118 Eingle, (1905) 71 Kan. 839, 80 Va. 98, 86 S. E. 836; Jopling v. Pac. 43. See also New Orleans, Bluefield Waterworks Co., (1912) etc., R. Co. v. Statham, (1869) 42 70 W. Va. 670, 74 S. E. 943, 39 L. Miss. 607, 97 Am. Dec. 478. R. A. (N. S.) 814. 28 Knickerbocker Ice Co. v. 30 O'Brien v. Loomis, (1890) Gardiner Dairy Co., (1908) 107 43 Mo. App. 29. Md. 556, 69 Atl. 405, 16 L. R. A. 31 Mclntire v. Sholty, (1887) (N. S.) 746. 121 111. 660, 13 N. E. 239, 2 Am. 29 Ferguson v. Missouri Pac. St. Rep. 140; Schriver v. Frawley, Ry. Cor., (Mo. 1915) 177 S. W. 616; (1914) 167 la. 419, 149 N. W. 510; Seely v. Alden, (1869) 61 Pa. 302, Krom v. Schoommaker, (1848) 3 100 Am. Dec. 642; Gwynn v. Cit- Barb. (N. Y.) 647. izens Telephone Co., (1904) 69 S. 33 Morris v. Duncan, (1906) 126 Car. 434, 48 S. E. 460, 67 L. R. A. Ga. 467, 54 S. E. 1045. Ill, 104 Am. St. Rep. 819; Frank- EXEMPLARY DAMAGES 125 from heirs or legatees, who cannot be guilty of malice in the perpetration of the tort, having taken no part in it. The assessment of exemplary damages in such a case, although not nominally against heirs or legatees, would, in fact, diminish their property interests in the estate of the deceased and so would be unjust. 51. Tort by Defendant's Agent. There are two dif- ferent and conflicting principles applied by different courts in the assessment of exemplary damages against a master or principal, some courts making the liability of the master or principal to exemplary damages depend- ent upon authorization or ratification of the wrongful act of the servant or agent, and others making it dependent upon the conduct of the servant or agent within the scope of his general authority. Most courts hold that the malice of the agent is not imputable to the principal and that therefore a principal is not liable in exemplary damages unless he expressly authorized or ratified his agent's wrongful act, or was guilty of gross negligence in selecting his agent ; 33 al- though some hold squarely contra. 3 * "Since the animus mains must be shown to exist in every case before an award in punitive damages may be made against a de- fendant, since the evil motive is the controlling and essen- 33 Davis v. Hearst, (1911) 160 S. E. 801, 7 L. R. A. 354; Robinson Cal. 143, 116 Pac. 530; Lightner v. Superior, etc., Co., (1896) 94 Mining Co. v. Lane, (1912) 161 Wis. 345, 68 N. W. 961, 34 L. R. Cal. 689, 120 Pac. 771; Colvin v. A. 205, 59 Am. St. Rep. 897. Peck, (1892) 62 Conn. 155, 25 Atl. Sheriff held not liable in exem- 355; Forhman v. Consolidated plary damages for unauthorized Traction Co., (1899) 63 N. J. Law and unratified act of his deputy. 391, 43 Atl. 892; Hagan v. Prov- Foley v. Martin, (1904) 142 Cal. idence, etc., R. Co., (1854) 3 R. 256, 75 Pac. 842, 100 Am. St. Rep. I. 88, 62 Am. Dec. 377; Western 123. But see Hazard v. Israel, Union Telegraph Co. v. Brown, (1808) 1 Binney (Pa.) 240, 2 Am. (1882) 58 Tex. 170, 44 Am. Rep. Dec. 438. 610; Ricketts v. Chesapeake, etc., 34 Fell v. Northern Pac. R. R, Co.. (1890) 33 W. Va. 433, 10 Co., (1890) 44 Fed. 248. 126 LAW OF DAMAGES tial factor which justifies such an award, it follows of necessity that no principal can be held in punitive dam- ages for the act of his agent, unless the particular act comes within the principal's specific directions or gen- eral suggestions, or unless the principal has subsequently ratified it; such ratification presupposing, it is said, original authorization. ' ' 36 Where a malicious tort of an agent is expressly author- ized by his principal, exemplary damages may be as- sessed against the principal. 36 There is comparatively little difficulty in determining what facts show express authorization of a malicious tort, so as to render a prin- cipal liable in exemplary damages ; but, on the question what constitutes such ratification as to afford a basis for the assessment of exemplary damages against a princi- pal, there is more of difficulty and hence more of adjudi- cation. The retention of the agent in the employ of the principal after the principal has notice of the tort is often held to be such a ratification as to make the prin- cipal liable in exemplary damages. 37 So it is held also of the retention of the fruits of the agent's tort by the principal. 38 Many cases hold a principal liable in exemplary dam- ages for malicious or grossly negligent torts of an un- skilful, negligent, reckless, or wanton agent employed by the principal. 39 35 Davis v. Hearst, (1911) 160 39 Henning v. Western Union Cal. 143, 116 Pac. 530. Telegraph Co., (1890) 41 Fed. 864. 36 Denver & R. G. Ey. Co. v. Cleghorn v. New York Central, Harris, (1887) 122 U. S. 597, 7 etc., Co., (1874) 56 N. Y. 44, 15 Sup. Ct. 1286, 30 L. ed. 1146. Am. Eep. 375; holding that it was 37 Bass v. Chicago & N. W. competent, for the purpose of es- Ry. Co., (1877) 42 Wis. 654, 24 tablishing a claim to exemplary Am. Rep. 437. damages, to prove that defendant 38 Kilpatrick v. Haley, (1895) railway's servant was intoxicated 66 Fed. 133, 13 C. C. A. 480, 27 at the time of the accident, that U. S. App. 752; Goddard v. Grand he was a man of intemperate hab- Trunk Railway, (1869) 57 Me. 202, its, and that this latter fact was 2 Am. Rep. 39. known to the agent of the corpora- EXEMPLARY DAMAGES 127 Where the wantonness of an agent is such as to make the agent liable for his tort, in exemplary damages, the principal is likewise so liable, 40 according to one line of cases. So it has been held that an attorney who seizes property, knowing or having reasonable grounds for be- lieving that it does not belong to the defendant in attach- ment, renders his client liable to the owner in exemplary damages. 41 Conversely, it is held that no exemplary damages can be recovered against the principal, where no such damages could be recovered of the agent if he were the defendant. 42 52. Against Corporations. Exemplary damages may be allowed against a private corporation. 43 Courts, how- ever, disagree as to the circumstances under which such allowance may be made. One case lays down the broad principle that "whatever rule of damages would apply in a suit against a natural person ought to apply in a suit against a corporation," stating further: "Any dis- crimination in that regard would shock the public sense of impartial justice, and would be an unjustifiable inno- vation. The instructions governing subordinate em- tion who had power to employ and (1892) 37 S. Car. 377, 16 S. E. discharge him. 40, 34 Am. St. Kep. 758. In most 40 Malloy v. Bennett, (1883) jurisdictions, this reasoning is not 15 Fed. 371. regarded as satisfactory. "When one person invests 41 Jones v. Lamon, (1893) 92 another with authority to act as Ga. 529, 18 S. E. 423. his agent for a specified purpose, 42 Torvnsend v. New York all of the acts done by the agent Central, etc., E. Co., (1874) 56 N. in pursuance, or within the scope, Y. 295, 15 Am. Rep. 419. of his agency, are, and should be, 43 Lake Shore & M. S. Ry. regarded as really the acts of the Co. v. Prentice, (1893) 147 U. principal. If, therefore, the agent, S. 101, 13 Sup. Ct. 261, 37 L. ed. in doing the act which he is depu- 97; Press Publishing Co. v. Mon- ted to do, does it in such a man- roe, (1896) 73 Fed. 196, 19 C. C. ner as would render him liable for A. 429, 38 U. S. App. 410, 51 L. exemplary damages, his principal R. A. 353; Goddard v. Grand Trunk is liable, for the act is really dome Ry., (1869) 57 Me. 202, 2 Am. Reo. by him." Rucker v. Smoke, 39. 128 ployees and agents may be devised in such utter disre- gard of the rights of others, that obedience to them will result in palpable oppression and gross wrong to indi- viduals. ' ' 44 Another rule, stated in an Illinois case, is as follows: "If the wrongful act of the agent is perpe- trated while ostensibly discharging duties within the scope of the corporate purposes, the corporation may be liable to vindictive damages. ' ' 45 Where a malicious tort is brought home to the corporation's managing officials, by proof either of authorization or of ratification by them, it is generally held that the assessment of exem- plary damages is proper. 46 As the corporation has no mind and cannot therefore itself entertain malice, exem- plary damages could never be assessed against a corpo- ration in the absence of such a rule. But some cases go 44 Jeffersonville v. Rogers, (1867) 28 Ind. 1, 92 Am. Dec. 276. So also in Lake Shore & M. S. By. Co. v. Prentice, supra; ami Timea Publishing Co. v. Carlisle, (1899) 94 Fed. 762, 36 C. C. A. 475. "Artificial, as they may be, there is still a human intelligence and volition controlling their affairs just like those of an individual, and which may act wrongfully, maliciously, and recklessly, thus laying the basis for exemplary damages. Whatever may have been the doctrine anciently, it is now too well settled to be uprooted, that corporations like these de- fendants, which are established and conducted in whole or in part for the pecuniary benefit of the members, are liable in actions for torts in the same way, and to the same extent as individuals or natural persons." Western Union Telegraph Co. v. Eyser, (1873) 2 Col. 141, (161-162), using in part the words of the Jeffersonville case, supra. This is a clear statement of the law in most states, though the case has since been overruled as to the allowance of exemplary damages at all at common law in Colorado. 45 Singer Mfg. Co. v. Holdfodt, (1877) 86 HI. 455, 29 Am. Rep. 43. 46 Press Publishing Co. v. Mon- roe, (1S96) 73 Fed. 196, 19 C. C. A. 429, 38 U. S. App. 410, 51 L. R. A. 353; Goddard v. Grand Trunk Ry., (1869) 57 Me. 202, 2 Am. Rep. 39; Bingham v. Lipman, Wolfe & Co., (1901) 40 Ore. 363, 67 Pae. 98. Conversely, it is held that, where a corporation's chief officers neither authorize nor ratify a malicious tort, the corporation is not liable in exemplary damages. Lake Shore & M. S. Ry. Co. v. Prentice, (1893) 147 U. S. 101, 13 Sup. Ct. 261, 37 L. ed. 97; Sun Life Assurance Co. v. Bailey, (1903) 101 Va. 443, 44 S. E. 692. EXEMPLARY DAMAGES 129 farther and allow such damages to be recovered of a cor- poration for malicious acts of servants, committed with- out special authorization or ratification by the manag- ing officials. 47 Of course, such would always be the hold- ing in a state where the principal's liability is deter- mined merely by the fact of liability of the agent. 48 In cases where a railroad corporation is defendant, courts have sometimes considered the fact that the corporation is in a public business and that the assessment of exem- plary damages would be conducive to a more complete fulfilment of its public duties. 49 Exemplary damages are not generally allowed against municipal corporations. 50 53. Joint Defendants. "Damages of this nature, if ever recoverable against several defendants, are recover- able only when all are shown to have been moved by a wanton desire to injury." 51 "Where two are sued for a trespass, and one has so acted as to become thus liable and the other not, to recover such damages the suit should be against the party alone who incurs the liability," 62 47 Louisville & N. R. Co. v. may, in a proper case, be recovered Garrett, (1881) 8 Lea (Tenn.) 438, for a willful injury to land, the 41 Am. Rep. 640. case would be exceptional, indeed, 48 Ante, p. 125. when vindictive or more than com- 49 Goddard v. Grand Trunk Ry., pensatory damages can be recov- (1869) 57 Me. 202, 2 Am. Rep. ered against a municipal corpora- 39. tion." Ostrom v. City of San An- 50 Chicago v. Langlass, (1869) tonio, (1903) 33 Tex. Civ. App. 683, 52 HI. 256, 4 Am. Rep. 603; Ben- 77 S. W. 829. nett v. Marion, (1897) 102 la. 425, 51 Boutwell v. Marr. (1899) 71 71 N. W. 360, 63 Am. St. Rep. Vt. 1, 42 Atl. 607, 43 L. R. A. 454. 803, 76 Am. St. Rep. 746. See "It is scarcely conceivable that also Krug v. Pitass, (1900) 162 a ease could be made against a N. Y. 154, 56 N. E. 526, 76 Am. St. municipal corporation, justifying Rep. 317. punitive damages." Breese, J., in 52 Becker v. Dupree, (1874) Chicago v. Martin, (1868) 49 111. 75 HI. 167. Contra: St. Louis S. 241, 9o Am. Dec. 590. W. Ry. Co. v. Thompson, (1908) "While exemplary damages 102 Tex. 89, 113 S. W. 144; Louis- Bauer Dam. 9 130 LAW OF DAMAGES although some courts have held contra. But, at common law, it has been held that exemplary damages are recov- erable against husband and wife in an action against them for the malicious trespass of the wife, although the husband is free from improper motive or other blame in the premises. This decision is on the ground of the common law oneness of husband and wife. 52a 54. Evidence of the Wealth of Defendant Admissible. In most actions, evidence of the wealth of the defend- ant is inadmissible; but, in cases involving the assess- ment of exemplary damages, such evidence is admitted. 53 This is for the purpose of determining how much in damages must be assessed in order really to punish the defendant. 55. Admissibility of Evidence of the Poverty of the Plaintiff. Evidence of the plaintiff's poverty is, on principle, never admissible for the purpose of enhancing exemplary damages, and some courts so hold. 54 The fact that the plaintiff is poor does not in any way affect the question what amount of damages is necessary in order to punish the defendant. But there is much authority to the effect that evidence of the pecuniary condition of the plaintiff is admissible in cases wherein exemplary damages are proper. 50 ville & N. R. Co. v. Roth, (1908) 55 Cochran v. Ammon, (1855) 130 Ky. 759, 114 S. W. 264, citing 16 111. 316; White v. Murtland, earlier cases. (1874) 71 111. 250, 22 Am. Rep. 52a Lombard v. Batchelder, 100; Beck v. Dowell, (1892) 111 (1886) 58 Vt. 558, 5 Atl. 511. Mo. 506, 20 S. W. 209, 33 Am. 53 Chellis v. Chapman, (1891) St. Rep. 547; Heneky v. Smith, 125 N. Y. 214, 26 N. E. 308, 11 (1882) 10 Ore. 349, 45 Am. Rep. L. R. A. 784. 143. 54 Robertson v. Conklin, etc., Co., (1910) 153 N. Car. 1, 68 S. E. 899, 138 Am. St. Rep. 635. EXEMPLARY DAMAGES 131 CASE ILLUSTRATIONS 1. Defendant broke his contract, by which he had agreed to employ plaintiff to cultivate a farm on shares. An instruction that the jury may assess damages "for violation of faith" in addition to damages for the breach, is bad as authorizing the assessment of vindictive damages, which is not allowed in con- tract, with very rare exceptions. 56 2. Defendant, a physician, and others, got plaintiff, a foreigner, intoxicated. Plaintiff was then induced to drink a glass of wine, into which defendant put a large portion of cantharides, from which plaintiff was made ill for a fortnight. He was not free from the effects of the drug for several months after. "Not- withstanding it was called a frolic, yet the proceedings appeared to be the result of a combination, which wrought a very serious injury to the plaintiff, and such a one as entitled him to very exemplary damages, especially from a professional character, who could not plead ignorance of the operation and powerful effects of this medicine. ' ' 57 3. Defendant, a banker, a magistrate, and a member of parlia- ment, who had been drinking too freely, trespassed upon plain- tiff's land, hunting, and using intemperate and threatening language toward plaintiff, who had told him to leave the premises. This is a case for exemplary damages. A verdict for the plain- tiff in the sum of 500, the whole amount named in the declara- tion, is sustained. 58 4. Defendant entered plaintiff's house with force and took plaintiff's chattels. "Whether the assessment of punitive damages is warranted, is a question for the jury. Such damages may be assessed, if the trespass was wanton, wilful, or malicious, or accompanied with such acts of indignity as to show a reckless dis- regard of the rights of others. 59 5. Defendant illegally and wantonly took plaintiff's horse and dray, and detained them without cause, despite the repeated demands of plaintiff that he return them. This is a proper case for exemplary damages. The defendant's conduct evinced an 56 Hoy v. Gronoble, (1859) 34 58 Merest v. Harvey, (1814) 5 Pa. 9, 75 Am. Dee. 628. Taunt. 442, 128 Eng. Repr. 761. 57 Genay v. Norris, (1784) 1 59 Cutler v. Smith, (1870) 57 Bay (S. Car.) 6. Til. 252. 132 LAW OF DAMAGES obstinate determination to take justice into his own hands. There was no evidence whatever to sustain defendant's claim of right. 60 6. Defendants notified plaintiff and his customers that they held a patent on certain goods made by plaintiff, that plaintiff was infringing the patent, and that they would bring suit if plaintiff continued to make, or his customers to buy, such goods. Defendants held no such patent, their patent on such goods having expired. The assessment of punitive damages is proper. Defendants had no reasonable ground to believe the statements to be true at the time they issued them. 61 7. Defendant express company undertook to carry plaintiff's piano, which, as it was notified, was to be used at once in plain- tiff's show. Plaintiff further notified defendant that any delay would result in a loss to him of $200 per night. Defendant, showing a reckless disregard of plaintiff's rights, delayed the piano for four days. Verdict for $200 compensatory and $500 exemplary damages. Judgment on verdict affirmed. 62 8. Defendant negligently permitted a vicious ram to run at large. It inflicted injuries on plaintiff. "Exemplary damages in cases of this nature can only proceed from gross and criminal negligence such negligence as evinces on the part of the de- fendant a wanton disregard of the safety of others, and which is in law equivalent to malice. ' ' C3 9. Defendant negligently ran his automobile into plaintiff's buggy, in which plaintiff was riding. There was evidence tending to show that defendant could have prevented his automobile from striking, but that he took off his brake and put on all the power he had, with the purpose of going through the buggy. The judg- ment of the court below, on a verdict for $50 actual, and $100 exemplary damages, is affirmed. "We think defendant had a fair trial and got off light." 64 10. During a storm in the night, defendant, operating a city 60 Summers v. Baumgard, recklessness on the part of tbe (1836) 9 La. 161. icarrier. 'Lord v. Maine Central 61 Stroud v. Smith, (1900) 194 K. Co., (1909) 105 Me. 255, 74 Pa. 502, 45 Atl. 329. Atl. 117. 62 Piero v. Southern Express 63 Pickett v. Crook, (1866) 20 Co., (1916) 103 S. Car. 467, 88 S. Wis. 358. E. 269. Not so where there is no 61 Williams v. Baldrey, (Okla. malice, fraud, gross negligence, or 1915) 152 Pac. 814. EXEMPLARY DAMAGES 133 electric lighting system, discovered that its current was grounded somewhere. Defendant continued to run its plant as usual. A few hours after daylight, when a number of persons were on the street, plaintiff's intestate was killed by contact with the grounded wire, on a street crossing. Held, that such negligence was shown as to warrant the assessment of exemplary damages. 65 11. In the rear end of defendants' store, a freight elevator was maintained, with a shaft door opening upon a platform in the alley. Plaintiffs' son, bringing goods to defendants, mistook this door for a rear entrance, opened it, walked into the shaft, fell to the bottom, and was killed. There was not such negligence of defendants shown here as to justify the assessment of ex- emplary damages. 66 12. In the course of mining operations, defendant wrongfully diverted, corrupted and poisoned water of a stream, to the injury of plaintiff, who brought action and procured a judgment. Still, defendant continued the nuisance. In a second action, for the continuance of the wrong, the plaintiff may obtain exemplary damages. 67 13. Defendant's building overhung plaintiff's lot and delayed him in the building of a store and office building. Defendant believed that plaintiff was responsible for the overhanging. He delayed removing the projection, even after issuance of a decree compelling him to remove it ; but this delay was due to attempts to devise some means of remedying the wall without causing great injury to his own wall. There is no ground for giving exemplary damages. 68 14. Plaintiff demanded the use of a telephone of defendant telephone company, which the latter refused, except on condition that plaintiff would consent to a prohibition of a joint use of the Bell telephone, which plaintiff refused to do. Defendant mis- takenly supposed it had a right to require acquiescence in this condition. In an action brought because of defendant's refusal, 65 Texarkana Gas & Electric 67 Long v. Trexler, (Pa. 1887) Light Co. v. Orr, (1894) 59 Ark. 8 Atl. 620. 215, 27 S. W. 66, 43 Am. St. Eep. 68 Burruss v. Hines, (1897) 94 30. Va. 413, 26 S. E. 875. 66 Leahy v. Davis, (1S94) 121 Mo. 227, 25 S. W. 941. 134 LAW OF DAMAGES it is held that exemplary damages cannot be recovered, as de- fendant was merely asserting what it believed to be its right. 69 15. A landlord went upon rented premises before the tenant 's term ended, broke open a locked building, and took therefrom his tenant's cotton, against his remonstrance. Punitive damages may be awarded, although the cotton be bound for supplies which the landlord has furnished, and though such forcible seizure of it be made for the purpose of selling it, and though it be fairly sold, and the proceeds applied to the debt for supplies. 70 16. Defendant, a mortgagee of the premises in which plaintiff lived, under a mistaken belief as to his legal rights, entered the premises and tore, spoiled, destroyed, and removed articles of furniture. Exemplary damages may be assessed. 71 17. A lessee, acting under an honest but mistaken belief as to title, took gas from the land. Exemplary damages cannot be allowed. 72 18. Plaintiff was a passenger on defendant's railroad. He surrendered his ticket to a brakeman, who, in the absence of the conductor, was authorized to demand and receive it. The brake- man afterward approached the plaintiff, and, in language coarse, profane, and grossly insulting, said that plaintiff had neither surrendered nor shown him his ticket. The brakeman called plaintiff a liar, charged him with attempting to avoid the pay- ment of his fare, and with having done the same thing before, and threatened to split his head open and spill his brains right there on the spot. The brakeman stepped forward and placed his foot upon the seat on which the plaintiff was sitting, and, leaning over the plaintiff, brought his fist close down to his 69 Gwynn v. Citizens' Tele- of the public under the first prin- phone Co., (1904) 69 S. Car. .434, ciples of the law of public service 48 S. E. 460, 67 L. R. A. Ill, corporations f 104 Am. St. Rep. 819. Under all 70 Shores v. Brooks, (1888) 81 the circumstances of this case, the Ga. 468, 8 S. E. 429, 12 Am. St. decision seems at least question- Rep. 332. able. Should a public service cor- 71 Best v. Allen, (1862) 30 HI. poration's belief that it has a right 30, 81 Am. Dec. 338. to annex unreasonable conditions 72 Gerkins v. Kentucky Salt to the performance of its duties, Co., (1902) 23 Ky. Law 2415, 100 avail to protect it from the assess- Ky. 734, 67 S. W. 821, 66 Am. ment of exemplary damages for an St. Rep. 370. act in gross disregard of the rights EXEMPLARY DAMAGES 135' face, and, shaking it violently, told him not to yip, if he did, he would spot him, that he was a damned liar, that he never handed him his ticket, that he did not believe he paid his fare either way. This misconduct of the brakeman became known to the defendant, but it continued him in its employ, thus practically ratifying his wrongful acts. This is a proper case for exemplary damages. Verdict for $4,850 upheld. 73 19. A conductor on defendant's train suddenly and violently seized the plaintiff, a lady passenger, put his arms about her, and repeatedly kissed her, although she strongly protested. De- fendant immediately discharged the conductor. Judgment for plaintiff for $1,000 affirmed, but only on the ground that it was fair compensation. Exemplary damages cannot be assessed where the principal is not a party to the malice of the agent. 74 20. Plaintiff, a passenger on defendant's train, bought the tickets of several passengers, which were not in terms non- transferable. The conductor, because of this, telegraphed for a police officer, who boarded the train as it approached its destina- tion. The conductor pointed out plaintiff, ordered his arrest, searched him for weapons, placed him under guard in another car, and would not permit him to tell the cause of his arrest or to speak with his wife. During the removal of the plaintiff from the car, the conductor said to the plaintiff's wife, "Where's your doctor now ? ' ' Plaintiff was not permitted to assist his wife with her parcels on arriving at destination, and he was forcibly taken to the station house, where he was detained until the conductor arrived. The conductor then filed a false charge against him. He was released on bail; and, on his trial, no one appearing against him, he was discharged. Held, that this is not a case for exemplary damages, unless the offense be brought home to the persons wielding the executive power of the corporation. 75 73 Goddard v. Grand Trunk 75 Lake Shore & M. S. By. Co. iBailway, (1869) 57 Me. 202, 2 v. Prentice, (1893) 147 U. S. 101, Am. Eep. 39. 37 L. ed. 97, 13 Sup. Ct. 261. 74 Craker v. Chicago & N. W. Ey. Co., (1875) 36 Wis. 657, 17 Am. Eep. 504. CHAPTER XII AGGRAVATION AND MITIGATION l 56. Aggravation is the adding to or making heavier of compensatory damages for non-pecuniary loss, and of exemplary damages. Both non-pecuniary compensatory damages and exemplary damages are largely in the discretion of the jury; and it is proper that the jury consider facts and circumstances in connection with the wrong. A compensatory element of damage may be ag- gravated by circumstances which tend to make greater the damage growing out of the wrong. For instance, the compensation for an assault and battery may be in- creased because of the fact that the injury is rendered greater by being perpetrated before a large crowd, so as to humiliate the plaintiff and cause him mental suf- fering. Exemplary damages may be aggravated by facts tending to show a higher degree of malice. The ag- gravation of damages by the fact of defendant's wanton- ness is sometimes put upon the ground that this fact really makes the injury greater. 2 57. Mitigation is the lessening of non-pecuniary com- pensatory damages or of exemplary damages. Any cir- cumstance tending to show that actual non-pecuniary damage is less, tends to mitigate compensatory dam- ages ; and any circumstance tending to show lack of mal- ice or a lesser degree of malice, tends to eliminate or 1 A complete exposition of the 2 Meagher v. Driscoll, (1868) principles herein set forth is not 99 Mass. 281, 96 Am. Dec. 759. attempted here, as much is said on the matter in chapters devoted to specific wrongs. 136 AGGRAVATION AND MITIGATION 137 to lessen exemplary damages. The lessening of pecun- iary damage is also frequently spoken of as mitigation, as in a case wherein an employee's pecuniary loss conse- quent upon wrongful discharge is diminished by his ac- ceptance of other employment. In mitigation, defendant may show that his act has been a benefit, and not an injury, to the plaintiff. So, where the suit is to recover possession of land and dam- ages for wrongful holding of it by defendant, the lat- ter has a right to prove in mitigation that he has erected on the land a house, which the plaintiff will recover along with the land in the event of a verdict for the plaintiff. 3 Provocation of defendant by acts of plaintiff may be shown in mitigation of exemplary damages, and it has even been said to preclude exemplary damages. 4 So, where the plaintiff was guilty of gross misconduct and fraud against the defendant, and the latter, under provo- cation of the wrong and without malicious motive, caused a false imprisonment of the plaintiff, exemplary dam- ages for the imprisonment are mitigated by evidence of such provocation. 5 But words of provocation neither justify an assault nor mitigate compensatory damages therefor. 6 Words of provocation on another occasion 3 Meier v. Portland Cable Ry. 475; Johnson v. McKee, (1873) Co., (1888) 16 Ore. 500, 19 Pac. 27 Mich. 471; Goucher v. Jamieson, 610, 1 L. R. A. 856. (1900) 124 Mich. 21, 82 N. W. 663; 4 Donnelly v. Harris, (1866) 41 Osier v. Walton, (1901) 67 N. J. "HI. 126; Kiff v. Youmans, (1881) Law 63, 50 Atl. 590; Palmer v. 86 N. Y. 324, 40 Am. Rep. 543; Winston-Salem R., etc., Co., (1902) Brown v. Swineford, (1878) 44 131 N. Car. 250, 42 S. E. 604; Wis. 282, 28 Am. Rep. 582. Mahoning V. R. Co. v. De Pascale, 5 Johnson v. Von Kettler, (1904) 70 O. St. 179, 71 N. E. 633, (1872) 66 HI. 63. 65 L. R. A. 860, 1 Ann. Gas. 896; 6 Hendle v. Geiler, (Del. 1895) Goldsmith's Adm'r v. Joy, (1889) 50 Atl. 632; Donnelly v. Harris, 61 Vt. 488, 17 Atl. 1010, 4 L. R. A. (1866) 41 HI. 126; Irlbeck v. Bierl, 500, 15 Am. St. Rep. 923; Willey (1896) 101 la. 240, 67 N. W. 400; v. Carpenter, (1892) 64 Vt. 212, Lund v. Tyler, (1901) 115 la. 236, 23 Atl. 630, 15 L. R. A. 853; Wil- 88 N. W. 333; Prentiss v. Shaw, son v. Young, (1872) 31 Wis. 574. (1869) 56 Me. 427, 96 Am. Dec. 138 LAW OF DAMAGES than that of defendant's offense, are not admissible in mitigation. 7 In case of assault, if the assault has not immediately followed plaintiff's provocation, such provo- cation cannot be considered in mitigation. If defend- ant's " blood has had time to cool," provocation does not mitigate damages for assault. 8 Where defendant has fairly stated all the facts to his counsel, the advice of counsel, while it does not justify defendant's subsequent unlawful act, may be considered in mitigation of exemplary damages. But advice of counsel cannot mitigate compensatory damages. 10 58. Contributory Negligence. Where the contribu- tory negligence of the plaintiff does not bar the action altogether, it is proper to consider it in mitigation of damages. 11 Many statutes have declared the same rule, notably the federal employers' liability act as to inter- state common carriers, under which this matter becomes one of great importance. This act provides that con- tributory negligence of an employee shall not bar recov- ery, but that damages shall be diminished in proportion to the amount of negligence attributable to the employee. But the statute completely wipes out the defense of con- tributory negligence in all cases wherein the violation by 7 Baltimore & O. R. Co. v. Bar- lins, (1904) 69 S. Car. 460, 48 S. ger, (1894) 80 Md. 23, 30 Atl. 560, E. 469. 26 L. E. A. 220, 45 Am. St. Eep. 9 Shores v. Brooks, (1888) 81 319. Ga. 468, 8 S. E. 429, 12 Am. St. "It is not the motive or the Rep. 332. feelings under which the legal 10 Sutherland on Damages, 4th wrong is committed, which deter- ed., 150, citing Richards v. San- mines the character of the act, or derson, (1907) 39 Colo. 270, 89 Pac. the amount of the actual damages 769, 121 Am. St. Rep. 167. resulting from it." Prentiss v. 11 Flanders v. Meath, (1859) Shaw, supra. 27 Ga. 358; Lord v. Carbon Iron 8 Carson v. Singleton, (1901) Mfg. Co., (1886) 42 N. J. Eq. 23 Ky. Law 1626, 65 S. W. 821; 157, 6 Atl. 812; Louisville & N. Corning v. Corning, (1851) 6 N. Y. R. Co. v. Conner, (1872) 49 Tenn. 97; Stetlar v. Nellis, (1871) 60 382. Barb. (N. T.) 524; Davis v. Col- AGGRAVATION AND MITIGATION 139 the employer of any statute for the safety of employees has contributed to the injury or death of the employee. 12 CASE ILLUSTRATIONS 1. Defendant committed an assault and battery upon the plain- tiff. Held, that the insult and indignity inflicted upon the plaintiff by giving him a blow with anger, rudeness, or insolence, ought to be considered as an aggravation of the tort. 13 2. A silk manufacturer sues a physician for slander, charging that defendant falsely told plaintiff's workmen that there was arsenic in the silk worked within plaintiff's factory. As a result of the slander, plaintiff, who was in the employ of a company, had to remain away from the company's work for eight days, but the company made no deduction for his lost time. Held, that the fact of this non-deduction cannot be considered in. mitigation. "The plaintiff does not recover because he was compelled to break his contract with the company, but for his own time and trouble, irrespective of his contracts. His cause of action for that could not be affected if a stranger saw fit to pay him for the same time, either by way of gift or upon consideration." 14 12 U. S. Ann. Stat. 1916, 8659. his employer an amount equal to 13 Smith v. Holcomb, (1868) his salary during the period of 99 Mass. 552. his absence from work. Nashville, 14 Elmer v. Fessenden, (1891) C. & St. L. Ry. Co. v. Miller, 154 Mass. 427, 28 N. E. 299. So (1904) 120 Ga. 453, 47 S. E. 959, held where plaintiff, disabled by 67 L. R. A. 87. 1 Ann. Gas. 210. defendant's wrong, was paid by CHAPTER XIII CONFLICTS OF LAWS 59. In General. It would seem to be an elementary principle of conflicts of laws that a plaintiff cannot in- crease his substantive rights by any choice of jurisdic- tion in which to bring suit, and it is usually so held. Sub- stantive rights are generally determined by the law of the place in which or by virtue of whose rules of law they accrue. It seems only in accord with reason to say that a right to have damages assessed is a substantive right; and it is such, according to the weight of au- thority. The measure of damages, in contract or in tort, is a mere incident to the liability to which it attaches, and must be determined by the law of the place whose law creates the right to damages. 1 Throughout this field, however, there are numerous considerations that affect the decisions. A right totally different from any right given by the law of the forum and incompatible with any remedy of the law of the forum, will not be enforced. 2 60. Contracts. In contract, the measure of damages, like other matters of substantive right, is determined by the intention of the parties, and may be according either to the law of the place of contracting or the law of the place of performance. Ordinarily, the measure of dam- ages for breach of contract to convey land is governed by the law of the place where the land is situated. Us- 1 Mills v. Dow, (1890) 133 U. 2 Slater v. Mexican National S. 423, 33 L. ed. 717, 10 Sup. Ct. R. Co., (1904) 194 U. S. 120, 4S 413; Bruce v. Cincinnati R. Co., L. ed. 900, 24 Sup. Ct. 581. (1885) 83 Ky. 174. See Sedg. Dam. (9th ed.) 1373. 140 CONFLICTS OF LAWS 141 ually in contract, the law of the place where the breach takes place governs as to damages, the law of such place being both the law contemplated by the parties and the law of the place where the wrong is committed. But the measure of damages may be determined according either to the law of the place of contracting or to the law of the place designated for performance, according to the intention of the parties. 3 A fruitful source of litigation as to the measure of damages, and especially as to what law governs such measure, has been contracts to transmit and deliver telegrams. Of course, on principle, the law of the forum should not affect the measure of damages, and so it is usually determined in these cases, as in others. The cases presenting most difficulties have, in the past, been those based upon contracts to transmit messages from one state to another. This field was in a state of con- fusion up to the comparatively recent time of the pas- sage of a federal statute bringing telegraph companies into the category of common carriers of interstate busi- ness and making them amenable to federal law. Under these statutes, it is held that damages for breach of a telegraph company's contract to transmit an interstate message are governed, not by any state law, but by fed- eral law. 4 61. Torts. In tort, the measure of damages is usually held to be governed by the law of the place where the 3 See Mills v. Dow, (1890) 133 terest given by way of damages U. S. 423, 33 L. ed. 717, 10 Sup. has sometimes been held to be a Ct. 413. remedial matter, governed by the Interest agreed upon by the law of the forum. Barringer v. parties is governed by the law of King, (1855) 5 Gray (Mass.) 9. the place where it is contracted 4 Act Cong. June 10, 1910, c. for and is to be paid. Winthrop v. 309, 36 Stat. 539; Western U. Tel. Carleton, (1815) 12 Mass. 4. Such Co. v. Hawkins, (Ala. 1917) 73 interest is given because of the So. 973; Western U. Tel. Co. v. agreement of the parties. But in- Showers, (Miss. 1916) 73 So. 276. 142 LAW OF DAMAGES tort was committed, and it would seem that this would be the only possible sound rule on this subject. 5 CASE ILLUSTRATIONS 1. A's administrator sues in Illinois for the wrongful death of A in Canada, where there is a statute allowing recovery in such cases, without stated limit. In Illinois, there is a statutory limit of $5,000 in such cases. Held that the Illinois statute does not limit recovery in this case. 6 2. Plaintiff's husband died of personal injuries negligently inflicted by defendant in Pennsylvania, where damages were not restricted. By the law of New York, the state of the forum, damages in such cases were restricted to $5,000. Held, that the action could be maintained in New York, but that New York's limitation to $5,000 applied. 7 3. Plaintiff brings action in Vermont for injuries received while in defendant's employ in Quebec. Held, that the meas- ure of damages is governed by the law of Quebec. 8 4. Plaintiff was a passenger on one of defendant's trains, her entire trip being within the state of Massachusetts. Held, in an action for loss of her baggage, that a law of New York, the state of the forum, exempting the carrier from all damages for loss of baggage in excess of $150 value, does not apply. 9 5 Northern Pacific R. Co. v. York, etc., R. Co., (1891) 126 N. Babcock, (1893) 154 U. S. 190, Y. 10, 26 N. E. 1050, 13 L. R. A. 38 L. ed. 958, 14 Sup. Ct. 978; 458, 22 Am. St. Rep. 803. Hanna v. Grand Trunk Ry. Co., 8 Osborne v. Grand Trunk Ry. (1891) 41 HI. App. 116. This seems Co., (1913) 87 Vt. 104, 88 Atl. 512, correct, but there are holdings Ann. Cas. 1916 C 74. Accord: contra. See Wooden v. Western Northern Pacific R. Co. v. Bab- N. Y., etc., R. Co., (1891) 126 N. cock, (1893) 154 U. S. 190, 38 L. Y. 10, 26 N. E. 1050, 13 L. R, ed. 958, 14 Sup. Ct. 978; Slater v. A. 458, 22 Am. St. Rep. 803. Mexican National R. Co., (1904) 6 Hanna v. Grand Trunk Ry., 194 U. S. 120, 48 L. ed. 900, 24 (1891) 41 111. App. 116. Sup. Ct. 581. Rev. Stat. 111. 1917, Chap. 70, 9 Hasbrouck v. New York Cen- 2, however, has since prohibited tral, etc., R. Co., (1911) 202 N. the bringing of actions in Illinois Y. 363, 95 N. E. 808, 35 L. R. A. for deaths occurring outside the (N. S.) 537, Ann. Cas. 1912 D state. 1150. 7 Wooden v. Western New CONFLICTS OF LAWS 143 5. Defendant contracted in Mississippi to transmit a telegraph message from plaintiff to plaintiff's daughter in Kentucky. Held, that the measure of damages for negligent delay in delivery, under federal statutes, is determined by federal law. 10 10 Western U. TeL Co. v. Show- ers, (Miss. 1916) 73 So. 276. CHAPTER XIV GENERAL PRINCIPLES OF PLEADING AND PRACTICE 62. Damage as the Gist of an Action. There are some wrongs of such a nature that the very fact of their per- petration imports injury, in the legal sense, it being cer- tain that such a wrong cannot be committed without in- flicting damage. In a case involving such a wrong, mere general pleading of the wrong in the declaration is suf- ficient notice to the defendant that damage has resulted from the wrong alleged. Pleading specially the damage is not necessary in such an action; that is, the very fact that the wrong is committed imports damage, so that, without any special allegation showing just how he is damaged, the plaintiff can set up a general statement of the wrong, and this entitles him, upon proof, to at least nominal damages. Familiar examples of such wrongs are: breach of contract, battery, the use of words that are libelous or slanderous per se, trespass to realty, and conversion. 1 Many wrongs are such that the mere fact of their com- mission does not show any right of action in any one. Negligence is committed millions of times each day, with damage to only a comparatively few persons. The vast majority of persons guilty of negligence cannot be sued for their negligence, because they have, despite their neglect of duty to others, done no damage. In fact, neg- ligence is not usually a legal wrong at all, unless it re- sults in damage. Nuisance, fraud, and many other 1 "Every injury imports dam- Lynn v. Mayor of London, (1791) age in the nature of it; and, if no 4 T. B. 130, 100 Eng. Repr. 933; other damage is established, the cited in Webb v. Portland Mfg. party is entitled to a verdict for Co., (1838) Fed. Gas. 17,322, 3 nominal damages." Mayor of Sumn. 189. 144 PLEADING AND PRACTICE 145 wrongs, may or may not cause damage, and so the mere allegation of the wrong, without special allegation of damage, does not make out a cause of action. 2 63. General and Special Damages. 3 When a defend- ant is summoned to plead to a declaration, it is not only good law, but the soundest common sense, to say that the declaration is complete and sufficient notice to him of the plaintiff's claim for all damage which necessarily results from the general wrong set up in the declara- tion. Compensation for the damage necessarily result- ing from the general wrong alleged is known as general damages. There are, in many cases, elements of damage that are not necessary results of the wrong alleged. Damages can- not be awarded for such elements without notifying the defendant, by the declaration, that compensation for them is claimed. It is obvious that, if the plaintiff were allowed to recover for results that are not the necessary or usual results of the wrong that is merely generally alleged in the declaration, the defendant would often be surprised and destitute of any opportunity to gather evidence to rebut that introduced on the trial. Compen- sation for unusual proximate results of a wrong must therefore always be grounded in special pleading and proof. Such compensation is known as special damages. The necessity of special pleading of damage comes up in two kinds of cases : first, those in which damage is the 2 "No legal injury is caused 3 "Special damages" must not * * * when there is no special be confused with "special dam- damage if special damage is an *&" The latter is Particular element of the legal injury, as in dama S e suffered b ^ the P laintlff slander not per se, nuisance, fraud, * ecause f \ Wr ng ****"** ,. damaging: others, as in the case or negligence, removal of lateral sup- & ^^ w ^ e & ^ port, procuring refusal of breach gance caugeg damage to R whole f contract, slander of title, mail- neighborhood, one resident cannot cious prosecution not defamatory." maintain an action therefor, un- Willis on Damages, p. 17. less he can show special damage. Bauer Dam. 10 146 LAW OF DAMAGES gist of the action, so that no recovery whatever can be had without special pleading ; and second, those in which the general statement of the wrong imports damage, but in which the plaintiff desires to recover for other ele- ments of damage than those usually resulting in such a case. In the first type, the right to damages is grounded entirely in special pleading; in the second, the right to damages is grounded partly in the general statement of the cause of action and partly in special pleading of ele- ments of damage in regard to the claim of which a mere general statement gives no notice. 4 Among special damages recoverable, if properly pleaded, are damages for liability incurred but not paid, for reasonable and necessary expenses caused by the wrongful act complained of, such as the fees of an at- torney employed to obtain a discharge from an illegal arrest, physicians' bills incurred for a cure of bodily injuries, and the like. 5 CASE ILLUSTRATIONS 1. Defendant leased a store building to plaintiff for one year, but later leased to other parties and refused to give plaintiff possession. Held, that plaintiff may recover the difference be- tween the rent to be paid and the value of the term at the time of the breach, without specially pleading the loss of such dif- ference. Such damage is presumed. 6 2. Defendant bank wrongfully refused payment of plaintiff's checks. Held, that plaintiff, having averred and proved that it was a trader and that its checks were wrongfully dishonored by defendant, the law presumes damage to plaintiff's financial reputation and credit. 7 4 The principles of this sub- 6 Green v. Williams, (1867) ject are further brought out by 45 111. 206. portions of chapters on various 7 J. M. James Co. v. Contin- particular wrongs. ental National Bank, (1900) 105 5 Donnelly v. Hufschmidt, Tenn. 1, 58 S. W. 261, 51 L. R. A. (1889) 79 Calif. 74, 21 Pac. 546; 255. Nelson v. Kellogg, (1912) 162 Calif. 621, 123 Pac. 1115, Ann. Cas. 1913 D 759. PARTH COMPENSATION AND ITS ELEMENTS CHAPTER XV COMPENSATION IN GENERAL 64. The Amount of Damages assessed in favor of the plaintiff, against the defendant, is usually intended to be commensurate with the amount of damage actually and certainly suffered by the plaintiff as a result of de- fendant's wrong, i. e., as a result so connected causally with the wrong as to warrant holding defendant liable for it. 1 All damages awarded are by way of compensa- tion, except exemplary damages, properly so called, 2 and 1 "As to the question respect- ing the measure of damages, it is a general and very sound rule of law, that where an injury has been sustained for which the law 5ives a remedy, that remedy shall be commensurate to the injury sus- tained. ' ' Rockwood v. Allen, (1811) 7 Mass. 254. "Every one shall recover dam- ages in proportion to his prejudice which he hath sustained. ' ' Holt, C. J., in Ferrer v. Beale, (1701) 1 Ld. Baym. 692, 91 Eng. Eepr. 1361. ' ' The rule of recovery is com- pensation." Leeds v. Metropoli- tan Gas Light Co., (1882) 90 N. Y. 26. "The general rule is, that when a wrong has been done, and the law gives a remedy, the compen- sation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed. In some instances he is made to bear a part of the loss, in others the amount to be recovered is allowed, as a punishment and example, to exceed the limits of a mere equiv- alent. ' ' Wicker v. Hoppock, (1867) 6 Wall. (U. S.) 94, 18 L. ed. 752. See also McMahon v. City of Dubuque, (1898) 107 la. 62, 77 N. W. 517, 70 Am. St. Rep. 143; and 8 R. C. L. 431, and eases there cited. 2 Some so-called exemplary damages are really compensatory. See p. 120. 147 148 LAW OF DAMAGES nominal damages merely vindicating plaintiff's right of action. The great principal purpose of the law of dam- ages is to give compensation for the damage inflicted upon the plaintiff by the defendant. 65. " 'Compensatory Damages' and 'Actual Damages' are synonymous terms." 3 The former term is, however, clearly preferable to the latter, avoiding, as it does, all confusion with * * actual damage " or ' ' actual loss. ' ' Com- pensatory damages are compensation for actual damage. 66. Pecuniary Condition of the Parties as Affecting the Amount of Compensation. Ordinarily, the wealth or poverty of the parties does not increase or diminish the amount of plaintiff's damage; and so, usually, evidence of the pecuniary condition of the parties is immaterial and inadmissible. But the fact that plaintiff is poor or that defendant is rich, may affect seriously the amount of plaintiff's actual damage, under the peculiar circum- stances of the individual case. 4 For instance, in an ac- tion by a husband and wife for an assault and battery upon the wife, ' * pain and suffering may be much greater where, from his pecuniary condition, the husband is un- able to furnish medical aid, remedies, apartments and nursing, such as ample means would afford. " 5 In some cases, as in slander, the plaintiff's actual damage may be increased by the fact of his own good standing finan- cially and socially. The good financial and social stand- ing of the defendant, in a slander case, may enhance the damage to the plaintiff, because statements made by a 3 Gatzow v. Buening, (1900) 5 Coehran v. Ammon, supra. 106 Wis. 1, 81 N. W. 1003, 49 L. See also White v. Murtland, (1874) R. A. 475, 80 Am. St. Rep. 17. 71 111. 250, 22 Am. Rep. 100. 4 Coehran v. Ammon, (1855) 6 Clements v. Maloney, (1874) 16 111. 316; Bump v. Betts, (1840) 55 Mo. 352. 23 Wend, (N. Y.) 85. COMPENSATION IN GENERAL 149 person standing high in his community are more likely to be believed than are statements by other persons. It is our purpose to treat, in the chapters that follow, the most important kinds of damage in compensation for which damages may be awarded. CHAPTER XVI Loss OF TIME, WAGES, AND EARNING POWER 67. Time. Loss of time is very commonly a head of damage in cases of personal injury. It also figures in other tort cases and often appears in actions on con- tracts. Time is purely a pecuniary element of damage. 1 Proof simply that the plaintiff has lost a certain amount of time as a result of the defendant's wrong, will not entitle the plaintiff to any substantial damages what- ever. 2 In arriving at the value of the time lost by the plaintiff by reason of the wrong he has suffered, the jury must be governed by the same rules as to certainty and proximity as in regard to any other element of damage. The jury cannot resort to mere conjecture as to the value of the time lost. Where, however, there is substantially no evidence of the money value of the time lost, it has been held that the court might be justified in telling the jury that the loss of time may be considered in deter- mining the extent of the injury and the amount of dam- age necessarily suffered therefrom. 3 Although, where loss of certain profits is the proximate and sole result of loss of time, such profits may be taken as a basis for com- puting the value of plaintiff's time, such is not the case where the profits are uncertain and contingent, and so the plaintiff can recover only the general value of his time, as shown by the evidence. 4 If plaintiff has suf- 1 Leeds v. Metropolitan Gas 1085; Judice v. Southern Pac. Co., Light Co., (1882) 90 N. Y. 26. See (1895) 47 La, Ann. 255, 16 So. also Ransom v. New York & E. R. 816. Co., (1857) 15 N. Y. 415. 3 Smith v. Whittlesey, supra. 2 Leeds v. Metropolitan Gas 4 Howe Sewing Machine Co. v. Light Co., supra; Smith v. Whit- Bryson, (1876) 44 la. 159, 24 Am. tlesey, (1906) 79 Conn. 189, 63 Atl. Rep. 735. 150 LOSS OF EARNINGS 151 fered special damage through his loss of time, he must specially plead and prove it. A verdict merely as to general damages may rest largely in conjecture, but a verdict based partly or wholly upon special damages, such as may arise from loss of time, must be grounded in proof. 5 Where a carrier wrongfully refuses to deliver freight to the consignee, who has applied for it and tendered the price of carriage, and the consignee is wrongfully compelled to return and apply again, he is entitled to compensation, not only for the expenditures proximately caused by the wrong, but also for the time consumed by the extra trip to the carrier's office. 6 So also, where a passenger has been wrongfully delayed in carriage or carried beyond his destination, he may recover of the carrier for his loss of time. 7 68. Wages or Earnings. Wages which the plaintiff has failed to make, because of the injury inflicted upon him by the defendant, may be recovered. The question for the jury, in such cases, is not, ' ' How much might the plaintiff have earned but for the accident?" but rather, "How much would he have earned?" i. e., in all prob- ability, in view of his earnings to the date of the injury and other relevant known facts appearing in evidence. 5 Smith v. Whittlesey, (1906) priate evidence, the jury must be 79 Conn. 189, 63 Atl. 1085, treating governed by such evidence, and, damages from loss of time as being in its absence, are not permitted to special, says: "An ascertainment resort ta mere conjecture." of the amount of general damages, 6 Suth. Dam., 4th ed. 911, or damages implied by law as the citing Waite v. Gilbert, (1852) 10 necessary results of a bodily in- Gush. (Mass.) 177. jury wrongfully inflicted, is ex 7 Dalton v. Kansas City, etc., necessitate rei largely controlled E. Co., (1908) 78 Kan. 232, 96 by conjecture. But, in ascertain- Pac. 475, 17 L. E. A. (N. S.) ing the amount orf a pecuniary loss 1226; Trigg v. St. Louis, K. C. & not necessarily a result of the in- N. E. Co., (1881) 74 Mo. 147, 41 jury but dependent for its exist- Am. Eep. 305; Texas & P. E. Co., ence and amount upon facts and v. Pollard, (1884) 2 Willson Tex. circumstances requiring appro- Civ. Cas. Ct. App. 424. 152 LAW OF DAMAGES Proof must be given of the actual amount plaintiff was earning at the time such earning was interrupted by the injury. 8 However, the fact that plaintiff's earnings are obtained in an occupation that yields varying returns, does not preclude the plaintiff from recovering substan- tial damages. In such a case, if his earnings do not embrace speculative elements, he has a right to intro- duce evidence as to amounts he has been earning pre- viously. 9 69. Earning Power. Not only may the plaintiff re- cover for wages that he has, at the time of the trial, already been prevented from earning, by the injury ; but he may recover for the temporary or permanent injury to his power to get wages or earnings. Here, as else- where, the requirement of certainty plays a prominent part. What the value of the plaintiff's earning power would have been but for the injury, is determined partly from evidence as to the wages he was getting at the time of the interruption of his work by the injury, and the temporary or permanent nature of the injury, and partly by evidence of other facts, such as plaintiff's age, habits, health, strength, occupation, and reasonable prospects of increased earnings. 10 The plaintiff has a right to be com- pensated for "the pecuniary loss sustained through in- ability to attend to a profession or business, as to which, again, the injury may be of a temporary character, or may be such as to incapacitate the party for the re- mainder of his life." 11 Where the plaintiff is perma- nently deprived of his earning power, it becomes impor- 8 Camparetti v. Union By. Co., 10 Richmond & D. B. Co. v. Alli- (1904) 88 N. Y. Supp. 425, 95 App. son, (1890) 86 Ga. 145, 12 S. E. Div. 66. 352, 11 L. B. A. 43. 9 Lund v. Tyler, (1901) 115 11 Phillips v. London & S. W. la. 236, 88 N. W. 333, in which B. Co., (1879) L. B. 4 Q. B. Div. plaintiff was permitted ta recover 406. lost earnings, although his occu- pation was fishing. LOSS OF EARNINGS 153 tant to ascertain a, accurately as possible the plaintiff's expectancy of life at the time of the injury. 12 1 * The loss of earning power is not always easy of cal- culation. It involves an inquiry into the value of the labor, physical or intellectual, of the person injured, be- fore the accident happened to him and the ability of the same person to earn money by labor physical or intel- lectual, after the injury was received. * ' The profits of a business with which one is connected cannot be made use of as a measure of his earning power. Such evidence may tend to show the possession of business qualities, but it does not fix their value." 13 Only where promotion of the plaintiff was reasonably certain at the time of the injury, can the prospect of such promotion be considered in estimating damages. 14 Only the present worth of earnings which the plain- tiff would have made in future years but for the diminu- tion or destruction of his earning power, can be allowed ; and it therefore is error for a jury to add up all such future earnings and allow them, with no reduction be- cause they are paid now instead of in the future. 15 70. Loss of Physical Power, Independent of Loss of Ability to Earn Money. The fact that plaintiff has not used his physical power for the purpose of earning money, does not bar his right to substantial damages for the loss of such power. A married woman may not have used her physical power for the purpose of earn- ing money, but that fact does not bar her right to re- 12 Life tables, in common use 14 Eiehmond & D. B. Co. v. among insurance companies, are Allison, (1890) 86 Ga. 145, 12 S. usually introduced in evidence to E. 352, 11 L. E. A. 43. show the reasonable expectancy 15 Goodhart v. Pennsylvania E. of life of the plaintiff. Co., (1896) 177 Pa. 1, 35 Atl. 191, 13 Goodhart v. Pennsylvania 55 Am. St. Eep. 705. E. Co\, (1896) 177 Pa. 1, 35 Atl. 191, 55 Am. St. Eep. 705. 154 LAW OF DAMAGES cover for an injury that prevents her from walking with- out crutches. 16 One kind of loss of physical power, of no importance as to earnings, is loss or impairment of procreative power; and yet it is an important element of damage, for which immense verdicts are often sus- tained. 17 CASE ILLUSTRATIONS 1. Plaintiff, in an action for personal injury, seeks to recover for loss of time and loss of earnings as two separate elements of damage. Held, that there is no logical distinction between the two elements. 18 2. Plaintiff, a freight conductor, was so injured through the negligence of the railroad company, that he had to have his left arm amputated. Held, that plaintiff can recover for di- minished earning capacity. 19 16 Atlanta St. R. Co. v. Jacobs, 96 Mo. App. 592, 70 S. W. 911. (1891) 88 Ga. 647, 15 S. E. 825. Wages or earnings are merely the See also Colorado Springs, etc., amount that best measures the By. Co. v. Nichols, (1907) 41 Colo, value of the plaintiff's time. 272, 92 Pac. 691, 20 L. E. A. (N. 19 Chicago, B. & Q. B. Co. v. S.) 215. Warner, (1884) 108 111. 538, say- 17 St. Louis, I. M. & S. B. Co., ing: ''That both arms are useful (1911) 99 Ark. 265, 137 S. W. to all, and indispensable in most 1103, Ann. Cas. 1913 B 141; O'Gara of the avocations of life, is but a v. St. Louis Transit Co., (1907) part of the common information 204 Mo. 724, 103 S. W. 54, 12 L. of mankind in general, and hence B. A. (N. S.) 840, 11 Ann. Cas. it required no other proof to estab- 850. lish it." 18 Stoetzle v. Sweringen, (1902) CHAPTER XVII PROPERTY 71. The Loss of Goods or Lands or Rights Therein is among the most important elements of damage, both in contract and in tort. Such a loss is a pecuniary element of damage, and usually the assessment of damages for it is a comparatively simple matter, there being none of the annoying conjectures and uncertainties so common in the assessment of damages for non-pecuniary ele- ments of loss. The assessment of damages for loss of goods or lands is usually a simpler matter than the as- sessment of damages for even other pecuniary elements. In contract, we have the action for breach of covenant against incumbrances and of covenant of title, and many other actions involving damages for loss of property or of property rights. Destruction or taking of property and injury thereto, are among the most usual elements of damage to be compensated for in tort cases. The guiding principle here, as is usual elsewhere, is com- pensation. Damages are assessed in such sum as to compensate for the loss of property. The details of this subject are more fully developed in other chapters throughout a large portion of this work. 1 1 See especially: Chapter tion is recoverable, measured by XXVIII, "Contracts Eclating to the value of the property at the Keal Estate;" Chapter XXIX, time of the loss. * * * For an "Sales and Contracts to Sell Per- injury to property resulting in a sonalty;" Chapter XL, ' "Portions permanent diminution of value, Damage to Realty; " Chapter XLI, compensation may be recovered "Tortious Damage Pertaining to for such diminution." Sedg. Dam. Personalty." (9th ed.) 40. See Sutherland on "For an injury to property re- Damages, 12, 79, 100. suiting in its total loss compensa- 155 72. In General. In many cases, expenditures made or liabilities incurred by the plaintiff because of the de- fendant's wrong, figure prominently as heads of dam- age. In contract, ordinarily the measure of damages is the value of the contract to the plaintiff if it had been performed, 1 but sometimes this cannot be ascertained, so that it becomes necessary, in order to give the plain- tiff some relief, to allow him the amount of his expendi- tures resulting as natural and probable consequences of entering upon the contract and lost because of the breach thereof. In tort, expenditures resulting proximately from defendant's wrongful act, are recoverable. Throughout the study of the subject, one must bear in mind that the expenditure must have been a proximate result of the wrong, and that it must not have been an avoidable consequence. 2 73. Expenditures Resulting from Breach of Contract. When it is not possible to ascertain the value to the plaintiff of the contract sued upon, although it has been speciously contended that only nominal damages can be recovered, the plaintiff may recover the amount of ex- pense by him " legitimately and essentially incurred for the purpose" of performing plaintiff's part of the con- tract, in reliance upon the defendant's performing. 3 But the plaintiff cannot recover for expenses unreasonably incurred by him upon the occasion of the breach. "A person has no right to put others to an expense of such 1 See Chapter XXVII. 3 Bernstein v. Meech, (1891) 2 See Chapters IV and V. 130 N. Y. 354, 29 N. E. 255. 156 EXPENSES 157 a nature as lie would not as a reasonable man incur on his own account. ' ' 4 The plaintiff may recover expendi- tures that he is led on by the defendant to make after defendant's breach, for the purpose of mitigating the loss occasioned to the plaintiff by such breach. 5 Expenses incurred by a buyer in an honest and reason- able effort to minimize the effects of a breach of warranty by the seller, are an element of damage in an action for the breach. 6 Where a buyer wrongfully refuses to accept goods pur- chased and shipped to him according to terms of the contract, the seller is entitled to be reimbursed for the freight charges which he has paid ; 7 and, where such breach occurs before shipment of goods, the seller may recover for necessary cost of storage. 8 74. Expenditures Resulting from Tort. Torts often necessitate the expenditure of money by the plaintiff for the purpose of repairing the injury or of avoiding or mitigating injurious consequences of the defendant's wrong. Where property is injured, the plaintiff has a right to compensation for money reasonably expended in good faith in an effort to save the property as well as for the loss of the property itself, even if, after all attempts to save the property, its loss is total, since " plaintiff is entitled to a fair indemnity for his loss." It can be said of such expenditure that "it was incurred, not to aggravate, but to lessen the amount for which the de- 4 Ward's Central, etc., Co. v. 7 Minneapolis TJhreshing Ma- Elkins, (1876) 34 Mich. 439, 22 chine Co. v. McDonald, (1901) 10 Am. Hep. 544. N. Dak. 408, 87 N. W. 993. 5 Murphy v. McGraw, (1889) 8 Ellithorpe Air Brake Co. v. 74 Mich. 318, 41 N. W. 917. Sire, (1890) 41 Fed. 662; affirmed, 6 Kelly v. Cunningham, (1860) 137 U. S. 579, 34 L. ed. 801, 11 36 Ala. 78; Nye & Schneider Cor. Sup. Ct. 195. v. Snyder, (1898) 56 Neb. 754, 77 N. W. 118; Perrine v. Serrell, (1864) 30 N. J. Law 454. 158 LAW OF DAMAGES fendants might be held liable. Had it proved successful, they would have had the benefit of it. As it turned out otherwise, it is but just * * that they should sus- tain the loss." 9 In tort, one may recover for expenditures reasonably made for the purpose of mitigating the effects of the wrong. 10 Where property of the plaintiff has been wrongfully taken and detained by the defendant, the plaintiff has a right to reimbursement of the money expended in a rea- sonable and bona fide attempt to find the property. 11 In cases of personal injury, on the same general prin- ciple, the plaintiff has a right to recover the amount of all expenses incurred reasonably and in good faith in order to repair the injury inflicted by the defendant or to avoid injurious consequences thereof. Such expenses are: physicians' fees, nurses' fees, hospital bills, and druggists' bills. Besides showing that expenditures of such a nature were, in general, necessary, the plaintiff must prove two things: "First, that he had paid or become liable to pay a specified amount; and, second, that the charges made were the usual and reasonable charges for serv- ices of that nature. He could recover no more than the amount which he had paid or become liable to pay, even if it was less than the usual and reasonable charge for such services; and, on the other hand, he could not re- cover more than such usual and reasonable charge even if he had paid more." 12 9 Watson v. Bridge, (1837) 14 10 Ocean S. S. Co. v. Williams, Me. 201, 31 Am. Dec. 49; cited (1882) 69 Ga. 251; Bolton v. Vel- with approval in Ellis v. Hilton, lines, (1897) 94 Va. 393, 26 S. E. (1889) 78 Mich. 150, 43 N. W. 847, 64 Am. St. Rep. 737. 1048, 6 L. R. A. 454, 18 Am. St. 11 Mitchell v. Burch, (1871) Rep. 438. Both these actions were 36 Ind. 529. brought for injuries to horses, after 12 Schmitt v. Kurrus, (1908) plaintiffs had attempted their cure. L'34 111. 578, 85 N. E. 261. EXPENSES 159 CASE ILLUSTRATIONS 1. Defendants broke their contract not to sell certain patent medicine in certain territory assigned to plaintiffs. Damages cannot be awarded to cover plaintiffs' cost of extra advertising considered necessary to protect their interests from defendants' wrongful competition, nor for the amount lost by reason of a reduction in price deemed necessary in order to counteract the effects of the violation of the contract by defendants. 13 2. A agreed to transport cordwood for B, but broke his agreement. There was no evidence that the wood was ever de- livered to A. The wood was later washed away by a freshet and lost. Held, that it would have been erroneous to instruct the jury that plaintiff could recover "whatever he may have ex- pended in the recovery of the wood washed away, if the jury should believe that the wood would not have washed away had the defendants kept their contract." Such damage was not shown to have arisen naturally from the breach, nor was it shown to have been within the contemplation of the parties as the probable result of a breach. 14 3. Gas works of defendant injured plaintiff's well, so that he could not use the water for drinking purposes. Held, that evidence was admissible to show the cost to plaintiff of furnish- ing a sufficient quantity of water equally pure with that which supplied him from his well before its injury by the gas works. 15 4. Plaintiff's horse was injured by defendant. Held that, in assessing damages, it was proper to consider the sums ex- pended by plaintiff for the treatment of the injured animal and for the hire of a horse to take its place while under treatment. 18 13 Fowle v. Park, (1892) 48 Graham, (1862) 28 111. 73, 81 Am. Fed. 789. Dec. 263. 14 Slaughter v. Denmead, 16 Hutton v. Murphy, (1894) 29 (1892) 88 Va. 1019, 14 S. E. 833. N. Y. Supp. 70, 9 Misc. 151. 15 Ottawa Gaa Light Co. v. CHAPTER XIX PROFITS AND BAKGAINS 75. Profits that defendant's wrong prevents plaintiff from making, may be recovered, if they can be shown in such manner as to bear the tests of the rules of causa- tion and certainty, as may any other element of damages. This is so both in contract and in tort. Although this is clearly just and is correct on principle, it has not always been the rule. 1 In contract, if the parties have, at the time of contract- ing, contemplated profits, the amount of such profits lost by reason of defendant's breach, should be assessed against him as damages ; 2 and, in tort, if a loss of profits proximately results from defendant's tortious act, such profits can be recovered ; 3 provided, however, in all cases, that the requirement of certainty be met. There are, however, many cases in which the loss of profits is too remote a consequence of defendant 's wrong- ful act, or in which the fact of the loss of the profits or the amount thereof is too uncertain to constitute any basis for a recovery of substantial damages. "It is not to be denied that there are profits or gains derivable from a contract which are uniformly rejected as too contin- gent and speculative in their nature, and too dependent upon the fluctuation of markets or the chances of busi- ness, to enter into a safe or reasonable estimate of darn- 1 Early English and American Baxendale, (1854) 9 Exch. 341, 5 holdings were to the effect that E. R. C. 502. profits could not be recovered 3 Allison v. Chandler, (1863) either in contract or in tort. 8 11 Mich. 542; Paul v. Cragnaz, R. C. L. 501. (1900) 25 Nev. 293, 60 Pac. 983, 2 Dennis v. Maxfield, (1865) 10 47 L. E. A. 540. Allen (Mass.) 138. See Hadley v. 160 PROFITS AND BARGAINS 161 ages. Thus, any supposed successful operation the party might have made, if he had not been prevented from realizing the proceeds of the contract at the time stipu- lated, is a consideration not to be taken into the estimate. Besides the uncertain and contingent issue of such an operation in itself considered, it has no legal or necessary connection with the stipulations between the parties, and cannot therefore be presumed to have entered into their consideration at the time of contracting. It has accord- ingly been held that the loss of any speculation or enter- prise in which a party may have embarked, relying on the proceeds to be derived from the fulfillment of an existing contract, constitutes no part of the damages to be recov- ered in case of breach. So a good bargain made by a vendor, in anticipation of the price of the article sold, or an advantageous contract of resale made by a vendee, confiding in the vendor's promise to deliver the article, are considerations always excluded as too remote and con- tingent to affect the question of damages. ' ' When the books and cases speak of the profits antici- pated from a good bargain as matters too remote and uncertain to be taken into the account in ascertaining the true measure of damages, they usually have reference to dependent and collateral engagements entered into on the faith and in expectation of the performance of the prin- cipal contract. The performance or non-performance of the latter may and doubtless often does exert a material influence upon the collateral enterprises of the party ; and the same may be said as to his general affairs and busi- ness transactions. But the influence is altogether too re- mote and subtile to be reached by legal proof or judicial investigation. And besides, the consequences, when in- jurious, are as often perhaps attributable to the indiscre- tion and fault of the party himself, as to the conduct of the delinquent contractor. His condition, in respect to the measure of damages, ought not to be worse for having failed in his engagement to a person whose affairs were Bauer Dam. 11 162 LAW OF DAMAGES embarrassed, than if it had been made with one in pros- perous or affluent circumstances. "But profits or advantages which are the direct or im- mediate fruits of the contract entered into between the parties, stand upon a different footing. These are part and parcel of the contract itself, entering into and con- stituting a portion of its very elements ; something stipu- lated for, the right to the enjoyment of which is just as clear and plain as to the fulfilment of any other stipula- tion. They are presumed to have been taken into con- sideration and deliberated upon before the contract was made, and formed perhaps the only inducement to the ar- rangement. The parties may indeed have entertained different opinions concerning the advantages of the bar- gain, each supposing and believing that he had the best of it; but this is mere matter of judgment going to the formation of the contract, for which each has shown him- self willing to take the responsibility, and must therefore abide the hazard. 1 'Such being the relative position of the contracting parties, it is difficult to comprehend why, in case one party has deprived the other of the gains or profits of the contract by refusing to perform it, this loss should not constitute a proper item in estimating the damages. To separate it from the general loss would seem to be doing violence to the intention and understanding of the parties, and severing the contract itself. ' ' 4 The requiring of certainty excludes many profits from consideration. "Profits are not excluded from recovery, because they are profits ; but when excluded, it is on the ground that there are no criteria by which to estimate the amount with the certainty on which the adjudications of courts, and the findings of juries should be based. 5 The 4 Masterton v. Mayor of Brook- Lack of compliance with rules of lyn, (1845) 7 Hill (N. Y.) 61, 42 causation is just as effective in Am. Dec. 38. barring a recovery as is lack of 5 This statement is too narrow. certainty. PROFITS AND BARGAINS 163 amount is not susceptible of proof. In 3 Suth. Dam. 157, the author discriminatingly observes : ' When it is advis- edly said that profits are uncertain and speculative, and cannot be recovered, when there is an alleged loss of them it is not meant that profits are not recoverable merely be- cause they are such, nor because profits are necessarily speculative, contingent and too uncertain to be proved; but they are rejected when they are so; and it is probable that the inquiry for them has been generally proposed when it must end in fruitless uncertainty; and therefore it is more a general truth than a general principle, that a loss of profits is no ground on which damages can be given.' When not allowed because speculative, con- tingent, and uncertain, their exclusion is founded by some on the ground of remoteness, and by others, on the pre- sumption that they are not in the legal contemplation of the parties." 6 In allowing profits to a jeweler tortiously ejected from the store which he occupied, the Michigan court, empha- sizing the fact that the allowance of profits in a tort case is less limited than in contract cases, the agreement and contemplation of the parties having no place in cases of tort, said in regard to certainty : * ' Since, from the nature of the case, the damages cannot be estimated with cer- tainty, and there is a risk of giving by one course of trial less, and by the other more than a fair compensation, to say nothing of justice, does not sound policy require that the risk should be thrown upon the wrongdoer in- stead of the injured party? However this question may be answered, we cannot resist the conclusion that it is better to run a slight risk of giving somewhat more than actual compensation, than to adopt a rule which, under the circumstances of the case, will, in all reasonable prob- ability, preclude the injured party from the recovery of a large proportion of the damages he has actually sus- fi Britain v. Carlisle, (1884> 7v Al.i. 2tr!. ,-fi Am. Rep. 28. 164 LAW OF DAMAGES tained from the injury, though the amount thus excluded cannot be estimated with accuracy by a fixed and certain rule. Certainty is doubtless very desirable in estimating damages in all cases; and where, from the nature and circumstances of the case, a rule can be discovered by which adequate compensation can be accurately meas- ured, the rule should be applied in actions of tort as well as in those upon contract. Such is quite generally the case in trespass and trover for the taking or conversion of personal property, if the property (as it generally is) be such as can be readily obtained in the market and has a market value. But shall the injured in an action of tort, which may happen to furnish no element of certainty, be allowed to recover no damages (or merely nominal) be- cause he cannot show the exact amount with certainty, though he is ready to show, to the satisfaction of the jury, that he has suffered large damages by the injury? Cer- tainty, it is true, would thus be attained ; but it would be the certainty of injustice. And, though a rule of certainty may be found which will measure a portion, and only a portion, of the damages, and exclude a very material por- tion, which it can be rendered morally certain the injured party has sustained, though its exact amount cannot be measured by a fixed rule ; here to apply any such rule to the whole case, is to misapply it ; and so far as it excludes all damages which cannot be measured by it perpetrates positive injustice under the pretense of administering justice. ' ' 7 Where the loss of profits in a business is an element of damage in a personal injury case, the fact that plaintiff has kept no itemized accounts of the costs and receipts of the business, does not render the amount of such loss so uncertain as to be necessarily not recoverable. If there are no accounts, the plaintiff's estimate of profits is ad- 7 Allison v. Chandler, (1863) 11 Mich. 542. PROFITS AND BARGAINS 165 missible in evidence. The absence of accounts goes only to the weight of the evidence. 8 It must be remembered that, on principle and accord- ing to the weight of authority, the plaintiff can recover for loss of profits, whether in contract or in tort, if he can meet the usual requirements of causation and certainty. 9 So, one employed for a definite period to represent an- other, with compensation to consist of commissions upon business done, has a right to recover for loss of such profits as must, with reasonable certainty, have accrued to him but for the wrongful termination of the contract by the other party. 10 An agent employed for a definite period to write insurance has a right, upon wrongful termination of the contract by the insurance company, to show the amount of probable renewals on existing poli- cies, on which he should receive commissions and also to show the amount of commissions on such policies as plaintiff would probably have written during the remain- ing portion of the period of employment, as indicated by the amount of business actually done by the agent suc- ceeding him, the amount of business done by himself previously to dismissal, and the number and character of ''prospects." 11 In contract, the fact that prospective profits are hard to compute or necessarily rather speculative, does not bar them, if the parties contemplated them. 12 8 Comstock v. Connecticut By. mann, (1898) 99 Wis. 251, 74 N. etc., Co., (19Q4) 77 Conn. 65, 58 W. 785. Atl. 465. 10 McGinnis v. Studebaker Cor- 9 Wells v. National Life Ass'n, poration, (1915) 75 Ore. 519, 146 (1900) 99 Fed. 222, 39 C. C. A. Pac. 825, 147 Pac. 525, Ann. Cas. 476, 53 L. R. A. 33; Dennis v. 1917 B 1190. Maxfield, (1865) 10 Allen (Mass.) 11 Wells v. National Life 138; Emerson v. Pacific Coast, Ass'n, (1900) 99 Fed. 222, 39 C. etc., Packing Ca., (1905) 96 Minn. C. A. 476, 53 L. K. A. 33. 1, 104 N. W. 573, 1 L. R. A. (N. 12 Dennis v. Maxfield, (1865) S.) 445, 6 Ann. Cas. 973, 113 Am. 10 Allen (Mass.) 138. St. Rep. 603; Schumaker v. Heine- 166 LAW OF DAMAGES 76. Bargains. Closely related to and somewhat inter- mingled with profits are bargains lost by reason of de- fendant's breach of contract. Often an important, sometimes the sole, element of damage in a contract case is the loss of a bargain. If the plaintiff has a con- tract under which the defendant is to supply him an article at a stated price, which is less than the market price at the time and place of delivery, and defendant breaks the contract, the plaintiff has a right to be com- pensated for the bargain, the financial advantage, which he has lost. So it is in any case of breach of con- tract in which the plaintiff has suffered the loss of a bargain contemplated by the parties. 13 CASE ILLUSTRATIONS 1. Defendant agreed to constitute plaintiffs its sole agents for the sale of at least 85 per cent of its entire pack of fish of all kinds, for two years. At the end of one year, defendant repudiated the contract. Held, that profits might be recovered. "Profits were necessarily within the actual contemplation of the parties. They are, therefore, proper basis for award of damages. * * * Deep sea fishing is not more speculative than mining, for breach of contract with respect to which future profits have been allowed as damages. * * * Nor is there any uncertainty as to the existence, but only as to the extent, of the profits." 14 2. A manufacturer failed to fill orders for a wholesaler ac- cording to contract. Held, that the wholesaler cannot recover for loss of profits on sales which plaintiff might have made if the contract had been fulfilled, in the absence of notice to the manufacturer unless such loss was in the contemplation of the parties as a probable result of a breach of contract. 15 13 Dustan v. McAndrew, (1870) 15 Holloway v. White-Dunham 44 N. Y. 72. Shoe Ca., (1906) 151 Fed. 216, 80 14 Emerson v. Pacific Coast & C. C. A. 568, 10 L. B. A. (N. S.) Norway Packing Co., (1905) 96 704. Minn. 1, 104 N. W. 573, 1 L. B. A. (N. S.) 445, 6 Ann. Gas. 973, 113 Am. St. Rep. 603. CHAPTER XX PHYSICAL PAIN 77. Pain a Non-Pecuniary Element of Damage Dam- ages to Be Reasonable. In actions for personal injuries, a very common element of damage, for which, if it be a proximate result of defendant's wrong, compensation is always allowed, is physical pain. 1 Pain and suffering cannot be exactly measured in terms of money, and the only rule governing the allowance of damages for such an element, is that it must be reasonable. * * This should not be estimated according to a sentimental or fanciful standard, but in a reasonable manner, as it is wholly ad- ditional to a pecuniary compensation afforded by the first and third items (expenditures for cure and loss of earning power) that enter into the amount of the verdict in such cases. * Some allowance has been held to be proper ; but, in answer to the question, 'How much!' the only reply yet made is that it shall be reasonable in amount." 2 Probably nowhere is the restriction of a principle of reasonableness more needed than in this in- stance, and probably nowhere are the bounds of rea- sonableness more indistinct and unsatisfactory; and this is necessarily so, from the immeasurable nature of phy- sical pain. The question of price as a compensation for plaintiff's suffering has no place in these cases; and "to suggest the idea of price to be paid to a volunteer as an 1 Peoria Bridge Ass'n v. Loom- Pennsylvania E. Co., (1896) 177 Pa. is, (1858) 20 111. 235, 71 Am. Dee. 1, 35 Atl. 191, 55 Am. St. 705. 263; Lake Shore & M. S. Ey. Co. 2 Goodhart v. Pennsylvania R. v. Frantz, (1889) 127 Pa. 297, 18 Co., supra. Atl. 22, 4 L. B. A. 389; Goodhart v. 167 168 LAW OF DAMAGES approximation to the money value of suffering, is to give loose rein to sympathy and caprice. ' ' 3 CASE ILLUSTRATIONS 1. Plaintiff was negligently struck and seriously injured by defendant's car. Pain, physical and mental, is an element of damage. 4 2. A railway company negligently put an employee to work at repairs between two cars, without the proper signal to indi- cate that he was there. Another car was driven against the car standing next to the one on which the employee was at work, greatly injuring the employee's hand. Recovery can be had for pain. 5 3 Baker v. Pennsylvania R. Co., (1894) 153 HI. 379, 39 N. E. 119. (1891) 142 Pa. 503, 21 Atl. 979, 5 Richmond & D. Ry. Co. v. 12 L. R. A. 698. Norment, (1887) 84 Va. 167, 4 S. 4 Central Ry. Co. v. Serfass, E. 211, 10 Am. St. Rep. 827. CHAPTER XXI MENTAL SUFFERING 78. In General. Damages for mental suffering may properly be allowed in many cases. There are sometimes so many questions involved in the decision whether to make any allowance in damages for such suffering, that the determination of the matter is very complex. 79. Mental Suffering as an Element of Damage in Con- tract. The common law is held not to include mental suffering as an element of damage in cases of breach of contract, unless such suffering is a natural and probable result of a breach of the contract such a result as might well have been anticipated by the parties, and, at the same time, a proximate result. 1 This is no more than an application of the general rule as to the assessment of any damages in contract. There are comparatively few contract cases in which, under such a rule, damages for mental suffering can be allowed. The mere disappoint- ment occasioned by the breach of an ordinary business contract cannot be allowed as an element of damage. 1 Birmingham Waterworks Co. App. 580, 58 So. 931, for breach of v. Vinter, (1910) 164 Ala. 490, 51 a liveryman's contract in connec- So. 356. But see Lewis v. Holmes, tion with a wedding. See also Tax- (1903) 109 La. 1030, 34 So. 66, 61 icab Co. v. Grant, (Ala. App. 1911) L. E. A. 274, where damages for 57 So. 141; and Central of Georgia mental suffering were allowed for Ry. Co. v. Knight, (1911) 3 Ala. breach of contract to make plain- App. 436, 57 So. 253. In Aaron tiff's wedding trousseau. This v. Ward, (1911) 203 N. Y. 351, case, however, was decided under 96 N". E. 736, mental suffering was the Louisiana Civil Code, and so is compensated for in a case of breach of no authority on the common of contract by revocation of a law. Such damages were allowed bathhouse ticket, in Browning v. Fies, (1912) 4 Ala. 169 170 LAW OF DAMAGES "Each case of this description must be decided with reference to the circumstances peculiar to it ; but it may be laid down as a rule, that generally in actions upon contracts no damages can be given which cannot be stated specifically, and that the plaintiff is entitled to recover whatever damages naturally result from the breach of contract, but no damages for the disappointment of mind occasioned by the breach of contract. ' ' 2 The breach of some contracts, however, may give rise to a right to dam- ages for mental suffering ; such as, a promise to marry, 3 a contract to transmit and deliver a telegram announcing death 4 (some cases contra 5 ) or sickness, a carrier's con- tract to transport a corpse, 6 and a contract to keep a corpse safe or to prepare it for burial. 7 Contrary to the usual rule, it has been held in Texas that damages for mental suffering may be given for breach of an ordinary 2 Pollock, C. B., in Hamlin v. The Great Northern By. Co., (1856) 1 Hurl. & N. 408, 156 Eng. Bepr. 1261. 3 Berry v. Da Costa, (1866) L. B. 1 C. P. 331, citing Smith v. Woodfine, (1857) 1 C. B. (N. S.) 660, which cites Sedgwick on Dam- ages (2d ed.) p. 368. Sedgwick cites Wells v. Padgett, (1850) 8 Barb. (N. Y.) 323, and other cases. 4 Western Union Tel. Co. v. Hill, (1909) 163 Ala, 18, 50 So. 248; Mentzer v. Western Union Tel. Co., (1895) 93 la. 752, 62 N. W. 1, 28 L. E. A. 72, 57 Am. St. Eep. 294; Stuart v. Western Union Tel. Co., (1885-6) 66 Tex. 580, 18 S. W. 351, 59 Am. Bep. 623. 5 Connell v. Western Union Tel. Co., (1893) 116 Mo. 34, 22 S. W. 345, 20 L. B. A. 172, 38 Am. St. Rep. 575. Recent cases hold that, as to interstate telegrams, the fed- eral rule applies under recent fed- eral statutes, so that damages for mental suffering are not recover- able. Western U. Tel. Co. v. Haw- kins, (Ala. 1917) 73 So. 973; West- ern U. Tel. Co. v. Showers, (Miss. 1916) 73 So. 276. 6 Louisville & N. B. Co. v. Hull, (1902) 113 Ky. 561, 68 S. W. 433, 57 L. B. A. 771; Hale v. Bonner, (1891) 82 Tex. 33, 17 S. W. 605, 14 L. B. A. 336, 27 Am. St. Bep. 850. 7 Compensation for mental suf- fering was allowed in a case where defendant, an undertaker, had broken his contract to deliver a certain coffin and robe, by deliv- ering only a box, and that too small, jamming the corpse into it, and furnishing no robe. J. E. Dunn & Co. v. Smith, (Tex. Civ. App. 1903) 74 S. W. 576. For such al- lowance for breach of contract to keep corpse safely, see Benihan v. Wright, (1890) 125 Ind. 536, 25 N. E. 822, 9 L. E. A. 514, 21 Am. St. Bep. 249. In Lindh v. MENTAL SUFFERING 171 contract of a passenger carrier ; 8 but it has been more recently held, by the Texas Court of Civil Appeals, that such damages are recoverable only if the probability of such suffering was made known to the railroad company at the time of the making of the contract. 9 Usually, unless a breach of a carrier's contract has resulted in a personal physical injury to the plaintiff, there can be no recovery thereon for mental suffering. 10 It is to be noticed that every one of these contracts for the breach of which mental suffering is commonly allowed as an element of damage, is one of which the breach may well have been expected to bring such suffering as a result. In such cases, mental suffering is a probable result of a breach, indeed, in such cases as those in- volving death messages and corpses, the only really dam- aging result to be expected; and the parties to the con- tract, as reasonably prudent persons, may be said to have Great Northern By. Co., (1906) 99 Minn. 408, 109 N. W. 823, 7 L. B. A. (N. S.) 1018, defendant company had negligently and wil- fully permitted casket and corpse of deceased wife of plaintiff to remain in the rain, by which the casket was soiled and ruined and the corpse mutilated and disfigured. Recovery for mental suffering was allowed. This case follows Larson v. Chase, (1891) 47 Minn. 307, 50 N. W. 238, 14 L. B. A. 85, 28 Am. St. Bep. 370, in which the opinion is well reasoned but is rendered, however, in a case purely in tort. But see Hall v. Jackson, (1913) 24 Colo. App. 225, 134 Pac. 151, refusing to allow damages for mental suffering, where defendant, an undertaker, had so negligently prepared the body of plaintiff's husband for shipment, that it reached its destination much de- composed. The court grounded its decision upon the facts that de- fendant was not in a public call- ing and that his wrong was not wanton or wilful. 8 St. Louis, A. & T. By. Co. v. Berry, (1890) 4 Wills. Civ. C. (Tex.) 166, 15 S. W. 48, holds that damages for mental suffering are recoverable for breach of contract to carry passengers and baggage. 9 Jones v. Texas, etc., B. Co., (1900) 23 Tex. Civ. App. 65, 55 S. W. 371. 10 Hamlin v. The Great North- ern By. Co., (1856) 1 H. & N. 408, 156 Eng. Repr. 1261; Wilcox v. Richmond & D. E. Co., (1892) 52 Fed. 264, 3 C. C. A. 73, 8 U. S. App. 118, 17 L. R. A. 804; Trigg v. St. Louis, etc., R. Co., (1881) 74 Mo. 147, 41 Am. Bep. 305; Walsh v. Chicago, etc., By. Co., (1877) 42 Wis. 23. 172 LAW OF DAMAGES had such consequences in contemplation at the time of making the contract. Since, in such cases, no important element of damage except mental suffering can be said to have been contemplated, the aggrieved party would be without any effective remedy if this were not allowed as an element of damage. Where damages for mental suf- fering have been allowed for breach of contract, the tor- tious element of the breach has sometimes been assigned as a reason for such allowance ; n and this may be correct on principle in the case of a carrier's contract or a breach of contract to marry; but it is unnecessary to rely upon this reason, for, in all the contract cases in which mental suffering has been compensated for as an element of damage, such suffering was merely a natural and prob- able result of the breach, within the contemplation of the parties at the time the contract was made, and therefore allowable as an element of damage in accordance with the general rules of the law of contracts. Absence of wantonness and wilfulness, or the absence of malice, has also been relied upon as a reason for not giving damages for mental suffering upon breach of contract. 12 On prin- ciple, it would seem that the tortious or non-tortious nature of the breach should not be the guiding star, but rather that the controlling element should be the fact that the parties should or should not have contemplated mental suffering as a probable consequence of a breach. Some courts have very properly held that, if mental suf- fering was such a result of the breach as should have been contemplated by the parties at the time of the mak- ing of the contract, and is, in the particular case, a proxi- mate result of the breach, it must be compensated for, 11 Wright v. Beardsley, (1907) breaches of contract for which 46 Wash. 16, 89 Pac. 172. In a die- damages for mental suffering have turn, the opinion in Smith v. San- been allowed. born State Bank, (1910) 147 la. 12 Hall v. Jackson, (1913) 24 640, 126 N. W. 779, calls atten- Colo. App. 225, 134 Pac. 151. tion to the tortiousness of all MENTAL SUFFERING 173 refraining from any discussion of malice or tortious- ness. 13 Clearly, there is no rule that damages for mental suf- fering are never to be allowed in a contract action; but the cases in which such damage is shown to be the prob- able, natural, and proximate result of the breach, are comparatively rare. 14 80. Mental Suffering as an Element of Damage in Tort. In many tort cases, mental suffering is a proper ele- ment of damage. Where a tort merely against property has been committed, it is not usually a recoverable ele- ment ; but, in the case of a negligent tort causing injury to plaintiff's person, or of a wilful tort to the person, the plaintiff may recover for mental suffering. 81. Actions for Torts Purely to Property are com- monly like those on ordinary business contracts, in that no damages for mental suffering are assessed, the usual reason given being that such suffering is not a natural consequence of injury to property. 15 But, when such tor- tious injury to property is accompanied by wilful mis- conduct, such as insolence, a larger recovery is sometimes allowed, even independently of the principle of exemplary 13 Adams v. Brosius, (1914) 69 where plaintiff's wife had no phy- Ore. 513, 139 Pae. 729, does not sician in attendance, by reason of allow damages for mental suffering nondelivery of telegram by defend- for breach of contract of physician ant. to attend plaintiff's wife, saying 14 Browning v. Fies, (Ala. App. that such suffering is not a proxi- 1912) 58 So. 931. mate or natural result, and that 15 White v. Dresser, (18S3) 135 damages for such suffering are too Mass. 150, 46 Am. Rep. 454. speculative. So also in Hyatt v. In Wyman v. Leavitt, (1880) Adams, (1867) 16 Mich. 180, a 71 Me. 227, 36 Am. Rep. 303, an tort action for malpractice result- action for injury to real estate, it ing in the death of plaintiff's was held that the mental anxiety wife. of the plaintiffs as to their own Contra: Western Union Tel. Co. safety and that of their children, v. Henderson, (1890) 89 Ala. 510, was not a recoverable element of 7 So. 419, 18 Am. St. Rep. 148, damage. 174 LAW OF DAMAGES damages. As Bramwell, B. says in Emblen v. Myers, 16 ' ' Suppose a person caused a nuisance in front of another man's house, damages might be given for the insult as well as the actual injury." Sometimes mental suffering is a natural, probable, and proximate result of a trespass to property, and so is considered a proper element of damage, as in an action for breaking the plaintiff's close and carrying away the corpse of the plaintiff's child. Such a case was Meagher v. Driscoll, 17 in which the court said : * * The gist of the action is the breaking and enter- ing of the plaintiff's close. But the circumstances which accompany and give character to a trespass may always be shown either in aggravation or mitigation. He w T ho is guilty of a wilful trespass, or one characterized by gross carelessness and want of ordinary attention to the rights of another, is bound to make full compensation. Under such circumstances, the natural injury to the feel- ings of the plaintiff may be taken into consideration in trespasses to real estate as well as in other actions of tort. Acts of gross carelessness, as well as those of wilful mischief, often inflict a serious wound upon the feelings, when the injury done to property is comparatively tri- fling. We know of no rule of law which requires the mental suffering of the plaintiff, or the misconduct of the defendant, to be disregarded. The damages in such cases are enhanced, not because vindictive or exemplary damages are allowable, but because the actual injury is made greater by wantonness." 82. Torts to the Person. Mental suffering is allowed as an element of damage, where plaintiff has suffered a physical injury as a result of defendant's tort to his per- son. 18 "In trespass for assault and battery, the jury may consider not only the mental suffering which accompanies 16 6 H. & N. 54, 158 Eng. Repr. 18 Dictum in Wyman v. Leav 23. itt, (1880) 71 Me. 227, 36 Am. Rep. 17 (1868) 99 Mass. 281. a03; citing Prentiss v.'Shaw, (1869) MENTAL SUFFERING 175 and is part of the bodily pain, but that other mental con- dition of the injured person which arises from the insult of the defendant's blows. Or for an assault alone, when maliciously done, though no actual personal injury be inflicted. ' ' 19 A fortiori, damages for mental suffering are allowed where slight physical damage to plaintiff's person has resulted from defendant's wrong. 83. Where There Is no Physical Injury. Damages for mental suffering are sometimes assessed in cases of wil- ful tort, where there is no direct physical injury, and are refused in cases of negligence without physical injury. The wilfulness or lack of wilfulness of the defendant's act is sometimes expressly made the differentiating ele- ment. 20 As is said in Kline v. Kline, 21 "While the cur- rent of authority supports the doctrine that there can be no recovery for mental suffering, where there has been no physical injury, in ordinary actions for neg- ligence, yet that is not the law as applied to a willful injury committed against the complaining party. ' ' Prob- ably the really essential difference between the willful tort and the negligent tort is not the wilfulness itself, but is rather the fact that the wilful tort, such as an assault, 56 Me. 427, 96 Am. Dec. 475; and (1902) 158 Ind. 602, 64 N. E. 9, Wadsworth v. Treat, (1857) 43 58 L. E. A. 397, in which the court Me. 163. says: "Having reached the con- " Mental suffering cannot be dis- elusion that an actionable wrong sociated from physical pain. Where was done appellee by appellant's the latter is found, the former is willful act, we assert that, as the implied." Montgomery & E. By. law imports some damage, she was Co. v. Mallette, (1891) 92 Ala. 209, entitled to recover full compensn- 9 So. 363. tiom, which includes compensation 19 Citing Goddard v. Grand for her mental suffering, even if Trunk By., (1869) 57 Me. 202, 2 there was no unlawful touching of Am. Bep. 39; and Beach v. Han- the body and no physical injury." cock, (1853) 27 N. H. 223, 59 Am. 20 Jansen v. Minneapolis, etc., Dec. 373. Ey. Co., (1910) 112 Minn. 496, 128 One of the best cases on the N. W. 826. allowance of damages for mental 21 (1902) 158 Ind. 602, 64 N. suffering where there is no direct E. 9, 58 L. E. A. 397. physical injury, is Kline v. Kline, 176 LAW OF DAMAGES is actionable per se, independently of damage to plaintiff, while negligence is not actionable per se, but is actionable only when damage has resulted to plaintiff. Mental suf- fering is not an independent cause of action; an action- able wrong, to which mental suffering is attached, must be established before such suffering can be compensated for. 22 Mental suffering may be allowed as an element of damage when a proximate result either of a wilful tort 23 or of actionable negligence causing injury to the person. 24 ' But the negligence must be actionable, or there can be no compensation for mental suffering. 25 As a great deal of unnecessary confusion beclouds this subject, it seems best to digress sufficiently to determine what constitutes actionable negligence. "In every case involving actionable negligence, there are necessarily three elements essential to its existence: (1) The exist- ence of a duty on the part of the defendent to protect the plaintiff from the injury of which he complains ; (2) a failure by the defendent to perform that duty; and (3) an injury to the plaintiff from such failure of the defend- ant. When these elements are brought together, they unitedly constitute actionable negligence. The absence 22 Reed v. Maley, (1903) 115 tation of Lynch v. Knight, (1861) Ky. 816, 74 S. W. 1079, 62 L. R. A. 9 H. L. Gas. 577, 11 Eng. Repr. 854; 900, in which defendant, without Johnson v. Hahn, (1914) 168 la. committing an assault or other 147, 150 N. W. 6; Lonergan v. Small, trespass, solicited plaintiff, a mar- (1909) 81 Kan. 48, 105 Pac. 27, 25 ried woman, to have sexual inter- L. R. -A. (N. S.) 976; Phillips v. course. Plaintiff, proving no tort Hoyle, (1855) 4 Gray (Mass.) 568; or breach of contract, showed no Stowe v. Hey wood, (1863) 7 Allen cause of action whatever, and so, (Mass.) 118. of course, could not recover for 24 McDermott v. Severe, (1905) mental suffering. The opinion dis- 202 U. S. 600, 26 Sup. Ct. 709, 50 tinguishes Newell v. Whitcher, L. ed. 1162. (1880) 53 Vt. 589, 38 Am. Rep. 25 "Of course, negligence with - 703. out injury gives no right of ac- 23 Larson v. Chase, (1891) 47 ticm." Purcell v. St. Paul City Minn. 307, 50 N. W. 238, 14 L. Ky. Co., (1892) 48 Minn. 134, 50 R A. 85, 28 Am. St. Rep. 370, N. W. 1034, 16 L. R. A. 203. criticizing the usual misinterpre- MENTAL SUFFERING 177 of any one of these elements renders a complaint bad, or the evidence insufficient. ' ' 2G 84. Mental Suffering Not Arising from Physical In- jury or Pain. Mental suffering caused by the defend- ant's negligence, but not arising from physical injury or pain, is not usually regarded as giving a right of action. 27 This is often put upon the ground that such mental suffer- ing is too remote. 28 As a matter of fact, it is not always too remote, as mental suffering may be and sometimes is a proximate result of defendant's negligence, even where there is no physical injury. The difficulty of ascertaining whether the mental suffering was caused by the negligent act, is also urged as a reason for denying relief. 29 The mere fact, however, that the plaintiff's case as to mental suffering depends largely upon his own testimony or upon unsatisfactory evidence, should not be deemed utterly to destroy his right to recover for such suffering, but rather merely to weaken his case as to matters of proof. Strict adherence to the rule bars many just, as well as unjust, claims. In their fear of the possible effect of a different holding in encouraging a flood of dishonest litigation based upon fictitious claims, some of the courts have deprived many persons of the right to enforce honest claims for actual injuries. The pernicious extension of the same doctrine even to cases wherein physical injury has been caused by the mental suffering, will be discussed elsewhere. As before stated, mental suffering is not an independent cause of action, and so an actionable wrong must first be established, before compensation can be had for mental suffering. But, where a wilful tort causes mental suffering with- 26 Faris v. Hoberg, (1993) 134 Ry. Co., 1896 2 Q. B. 248, which, Ind. 269, 33 N. E. 1028, 39 Am. St. however, was a slightly different Rep. 261. case, arising on an accident i- 27 Victorian Rys. Commission- surance policy. ers v. Coultas, (House of Lords, 28 Victorian Eys. Commission- 1888) L. R. 13 App. Gas. 222; not ers v. Coultas, supra, followed in Pugh v. London, etc., 29 Id. Bauer Dam. 12 178 LAW OF DAMAGES out any direct physical injury, there is a cause of action. 30 In cases of abduction, seduction, libel, slander, assault, and other wilful torts, mental suffering is allowed for, although the plaintiff has suffered no personal physical injury. 31 This is because, in such cases, the defendant's wrongful act is actionable per se, being in this respect different from mere negligence. 85. Physical Injuries Resulting from Mental Suffer- ing. Fright, fear, or worry, caused by the defendant's wrong, often, in turn, produces serious bodily harm. In- deed a nervous shock is itself sometimes very correctly said to be a physical rather than a mental injury, even when a mental disturbance accompanies it. Probably most of such cases, in which the plaintiff's person has not come into contact with any physical agency of the defend- ant, are cases involving that species of mental suffering known as fright. Where fright, proximately caused by a wrongful act, either wilful or merely negligent, causes physical injury, such as nervous prostration, general im- pairment of health, or a miscarriage, such physical injury is, by some courts, and according to the better view, deemed a proximate result of the wrongful act, and so is a recoverable element of damage. 32 The weight of case 30 Watson v. Dills, (1902) 116 L. R. A. 203; Hill v. Kimball, la. 249, 89 N. W. 1068, 57 L. R. (1890) 76 Tex. 210, 13 S. W. 59, A. 559, 93 Am. St. Rep. 239; 7 L. R. A. 618; Spade v. Lynn & Schmitz v. St. Louis, etc., R. Co., Boston R. Co., (1897) 168 Mass. (1893) 119 Mo. 256, 24 S. W. 472, 285, 47 N. E. 88, 38 L. R. A. 512, 23 L. R. A. 250; Lipman v. At- 60 Am. St. Rep. 393, differentiates lantic, etc., R. Co., (S. Caj. 1917) between cases of mere ordinary 93 S. E. 714, 85 Cent. Law Jour. negligence and those of gross reck- 339. lessness or wilful misconduct, al- 31 Stowe v. Heywood, (1863) lowing na recovery for mere fright 7 Allen (Mass.) 118. or mental distress caused by or- 32 Watson v. Dilts, (1902) 116 dinary negligence, but implied!y la. 249, 89 N. W. 1068, 57 L. R. admitting that such recovery is al- A. 559, 93 Am. St. Rep. 239; Pur- lowed where there is a wilful or cell v. St. Paul City Ry. Co., (1892) grossly negligent wrong. 48 Minn. 134, 50 N. W. 1034, 16 "Tn the light of modern science, MENTAL SUFFERING 179 authority, however, is that such physical injury is too remote a consequence to constitute a cause of action, if the wrongful act was merely negligent. 33 Here, as in actions brought for mental suffering alone, anticipation of the probable effect of favorable holdings in increasing the litigation of wrongful claims, has tended to make the courts very reluctant to recognize the plaintiff's rights. 34 Where a wrongful act, actionable per se, is wilful, there is almost universally an allowance of damages for nay, in the light of common knowledge, can a court say, as a matter of law, that a strong mental emotion may not produce in the subject bodily or mental injury? May not epilepsy or other nervous disorder or insanity result from fright? May not a miscar- riage result from a mental shock?" Gulf, Colorado, etc., Ry. Co. v. Hayter, (1900) 93 Tex. 239, 54 S. W. 944, 47 L. R. A. 325, 77 Am. St. Rep. 856. See note, "Right to Recover Damages for Bodily Pain and Suf- fering Resulting from Fright with- out Actual Physical Violence," 12 Ann. Cas. 741. 33 Victorian Rys. Commission- ers v. Coultas, (House of Lords, 1888) L. R. 13 App. Cas. 222. Mitchell v. Rochester Ry. Co., (1896) 151 N. Y. 107, 45 N. E. 354, 34 L. R. A. 781, 56 Am. St. Rep. 604, goes so far as to hold that there can be no recovery for a miscarriage from fright caused by defendant's negligence. In Ire- land, there has been a refusal to follow the rule laid down in the Coultas Case. Bell v. Great North- ern Ry. Co., (1890) 26 L. R. Ire. 428; in which decision attention is called to an unreported case de- cided in 1882-4, allowing recovery for nervous shock without more di- rect physical injury. This is of especial interest, as the Coultas Case is put partly on the ground of the novelty of the action. In accord with the Bell Case are: Sloane v. Southern California Ry. Co., (1896) 111 Calif. 668, 44 Pac. 320, 32 L. R. A. 193; Purcell v. St. Paul City Ry. Co., (1892) 48 Minn. 134, 50 N. W. 1034, 16 L. R. A. 203; and many other American cases. 34 Wilkinson v. Downton, L. R. 1897 Q. B. 57. "While almost all the authorities agree that recovery may be had for physical injury re- sulting from fright caused by a wilful, wrongful act, the courts are hopelessly divided in opinion * * * as to whether or not recovery should be permitted where the act causing the fright is a negligent one merely, and not a wilful one. Not only are they disagreed as to whether a recovery should be allowed for a physical injury resulting from fright caused by a wrongful act, but, where they deny recovery, they disagree as to the reason for denying it; and very often a court will state two or three reasons which are incon- sistent." Note in 22 L. R. A. (N. S.) 1073. See also note in 3 L. R. A. (N. S.) 49. 180 LAW OF DAMAGES physical injury consequent upon fright or nervous shock proximately caused by such wrongful act. 35 86. The "Impact Theory." A number of negligence cases, approving the rule laid down in Victorian Railway Commissioners v. Coultas, 30 have gone still farther and laid down a rule that, in order to have a recovery for fright or other mental suffering or the results thereof, the plaintiff must prove that he was injured by physical impact. 37 As a matter of fact, the court, in the Coultas Case, expressly refrains from finding that impact is essential to a recovery. The rule making impact essential is not based upon sound reason and is often criticized. Although negligence plus fright or other mental suffering alone may give no right of recovery, damages should be assessed for negligence plus resulting fright plus physical injury resulting from the fright, even where there is no impact, if, on the facts of the case, the physical injury is a proximate result of defendant's negligence. 38 The mere intervention of fright or other mental disturbance should not be held so to break the chain of causal connec- tion between defendant's negligence and plaintiff's phy- sical injury as to make such physical injury too remote. 87. Mental Suffering Caused by Injury to Third Party. No right of action accrues to one because of one's distress of mind at an injury to another. A kind of causal connection may exist between the wrong and such 35 L. E. A. notes, supra. 199, a very poorly reasoned case. 36 (House of Lords, 1888) L. E. See also Mitchell v. Rochester Ey. 13 App. Gas. 222. Co., (1896) 151 N. Y. 107, 45 N. 37 Spade v. Lynn & Boston R. E. 354, 34 L. E. A. 781, 56 Am. Co., (1897) 168 Mass. 385, 47 N. St. Eep. 604. E. 88, 38 L. E. A. 512, 60 Am. 38 Sloane v. Southern Cali- St. Eep. 393. The "'impact theo- fornia Ey. Co-., (1896) 111 Calif. ry" is substantially fallowed in 668, 44 Pac. 320, 32 L. E. A. 193; Braun v. Craven, (1898) 175 111. O'Meara v. Eussell, (Wash. 1916) 401, 51 N. E. 657, 42 L. R. A. 156 Pac. 560. MENTAL SUFFERING 181 mental suffering, but the result is too remote. 39 \Jfo, mental suffering at the libel of a dead relative is not a cause of action. 40 The allowance of damages for mental suffering of a parent in an action for seduction, is some- times pointed to as an exception to the general rule; 41 but it is more an exception in appearance than in reality, for the action is for a wrong done to the parent 's rights in his child. In such a case, although the physical injury takes effect only upon the body of the seduced, there is an invasion and disturbance of plaintiff's family rela- tions. CASE ILLUSTRATIONS 1. Defendant railroad company broke its contract to trans- port plaintiff to the bedside of his sick father. By defendant's delay, plaintiff was compelled to wait for a long time and to suffer much anxiety. He cannot recover for mental suffering. This is a mere breach of contract, without physical suffering or pecuniary loss. 42 2. Defendant broke his promise to marry plaintiff. Plaintiff may recover for "whatever mortification or distress of mind she suffered, resulting from the refusal of the defendant to ful- fill his promise. ' ' 43 3. The defendant wrongfully removed the remains of the plaintiff's child from a burying-place. Injury to the feelings of the plaintiff constitutes a proper element of damage. 44 39 Coving-ton St. R. Co. v. Pack- Packer, (1873) 9 Bush. (Ky.) 455, er, (1873) 9 Bush (Ky.) 455, 15 15 Am. Rep. 725. Am. Rep., 725; Sperier v. Ott, 42 Wilcox v. Richmond, etc., R. (1906) 116 La. 1087, 41 So. 323, Co., (1892) 52 Fed. 264, 3 C. C. A. 7 L. R. A. (N. S.) 518, 114 Am. 73, 8 U. S. App. 118, 17 L. R. A. St. Rep. 587; Gulf, C. & S. F. Ry. 804. Co. v. Overton, (1908) 101 Tex. 43 Coolidge v. Neat, (1880) 129 583/110 S. W. 736, 19 L. R. A. Mass. 146. (N. S.) 500. 44 Bessemer Land, etc., Co. v. 40 Bradt v. New Nonpareil Co., Jenkins, (1895) 111 Ala. 135, 18 (1899) 108 la. 449, 79 N. W. 122, So. 565, 56 Am. St. Rep. 26; fol- 45 L. R. A. 681. lowing Meagher v. Driscoll, (1868) 41 Covington St. Ry. Co. v. 99 Mass. 281, 96 Am. Dec. 759. 182 LAW OF DAMAGES 4. The plaintiff, a passenger on the defendant's boat, was compelled by the defendant to leave the boat because he had not had his ticket validated according to its terms. The plaintiff cannot recover for fear and trepidation caused by the fact that the defendant failed to furnish him safe means of getting off the boat. 45 5. Defendant's wrongful act caused damage to plaintiff's prop- erty, but not physical injury to the plaintiff. There can be no recovery here for mental suffering. 46 6. The plaintiff, a young woman of good character, was, by mistake, wrongfully ordered off the grounds of the defendant company, before a large number of people, by an employee of the defendant, who thought she was a lewd woman. She can recover for mental suffering, although she suffered no direct physical injury. 47 7. The defendant wrongfully destroyed the furnace in the house occupied by the plaintiff, whose child was ill. It did not appear that the child was injured by the defendant's act, but "the plaintiff was annoyed, and subjected to more or less mental suffering and anxiety, by reason thereof." Held, that such mental suffering and anxiety could be considered in estimating damages. 48 8. The defendant railroad company shoved its cars off the end of a switch track and into the dwelling of the plaintiff, who, being in the house at the time, "suffered a severe nervous shock that shattered her nervous system and caused her great bodily pain and mental anguish and permanent injury to her person and health." There was no claim that the plaintiff, at the time of the accident, received any actual bodily injury, or that the defendant's negligence was willful or wanton. Here there can be no recovery for injuries resulting from fright or nervous shock. Such injuries are said by the court not to be the natural and probable consequences of the negligence com- 45 Southern Pacific Co. v. Am- 47 Davis v. Tacoma Ry., etc., mons, (Tex. Civ. App. 1894) 26 S. Co., (1904) 35 Wash. 203, 77 Pac. W. 135. 209, 66 L. R. A. 802. 46 Gulf, etc., Ry. Co. v. Trott, 48 Vogel v. McAuliffe, (1895) (1894) 86 Tex. 412, 25 S. W. 419, 18 R. I. 791, 31 Atl. 1. 40 Am. St. Rep. 866. MENTAL SUFFERING 183 plained of. The decision is based partly upon the ground of public policy. 49 9. The defendant, by negligent blasting, caused a rock to crash through the plaintiff's residence, frightening the female plaintiff, greatly shocking her nervous system, and almost caus- ing a miscarriage. Held, that there can be a recovery for nerv- ous shock. "The nerves are as much a part of the physical system as the limbs, and in some persons are very delicately adjusted, and, when 'out of tune,' cause excruciating agony. We think the general principles of the law of torts support a right of action for physical injuries resulting from negligence, whether wilful or otherwise, none the less strongly because the physical injury consists of a wrecked nervous system instead of lacerated limbs." 50 10. The defendant came to the home of the plaintiff and her husband, and, within hearing, but out of sight of the plaintiff, who was in bed, quarreled with the plaintiff's husband, calling him offensive names, using vile language, drawing a knife, and threatening to cut him. The plaintiff was pregnant at the time and became so frightened that she had a miscarriage. Held, that there could be no recovery for the plaintiff's fright and consequent miscarriage. "The injury in question not being one which the defendant could reasonably be expected to antici- pate as likely to ensue from his conduct, we can not regard it as the natural consequence thereof, for which defendant is legally liable." 51 11. Defendant, in the absence of plaintiff's husband, and with the purpose of collecting a claim against the husband, wrong- fully entered the home of plaintiff, who was far advanced in pregnancy. Defendant made threats, causing plaintiff to be- 49 Miller v. Baltimore & O. S. 51 Phillips v. Dickerson, (1877) W. K. Co., (1908) 78 O. St. 309, 85 111. 11, 28 Am. Rep. 607. Scott, 85 N. E. 499, 18 L. E. A. (N. S.) J. dissented. The result of the hold- 949, 125 Am. St. Eep. 699. ing in the particular case seems 50 Kimberley v. Rowland, unfortunate and unjust. The deci- (1906) 143 N. C. 398, 55 S. E. 778, sion seems to be a result of too 7 L. R. A. (N. S.) 545; a well strict a construction of "proximate reasoned case. The opinion seems result." to be based upon more satisfactory reasoning than does that in the preceding case. 184 LAW OF DAMAGES come nervous, excited and ill, and to give premature birth to her child. Held, that defendant is liable. 52 12. Defendant wrongfully entered the bed room of plaintiff, a blind girl, and leaned over her and solicited criminal sexual relations, which plaintiff refused. Plaintiff was so alarmed by defendant's acts, and her feelings were so outraged, that she suffered a long illness. Held, that she may recover damages. 53 13. The defendant company conducted a school for instruc- tion in the operation of automobiles. Defendant's employee negligently permitted an inexperienced student to drive an au- tomobile, which, because of the student's lack of skill, collided with a buggy in which were the plaintiff and others, delivering so severe a shock to the plaintiff, "who was leaning against the back of the seat of the buggy, that she was knocked forward out of her seat." Plaintiff was then pregnant. "About a month thereafter she suffered a miscarriage. By the medical testi- mony the foetus had been dead about 2 or 3 weeks, and the miscarriage was the result of the fright and the shock caused by the collision," and evidence was also introduced, showing that the plaintiff had suffered a second miscarriage a few months after the first, and further medical testimony was given that the second miscarriage, in the opinion of the witness, was caused by the other injuries in question. The plaintiff could recover for fright either accompanying or following the original physical injury, and for the miscarriage or miscarriages resulting from the direct personal injury and fright. 54 14. Defendant unlawfully placed a barbed wire fence across a highway. Plaintiff, with his wife and daughter, in a carriage, collided with it, and plaintiff was injured. Held, that plaintiff's 'mental anxiety for the safety of his wife and daughter cannot be considered as an element of damage. 55 52 Engle v. Simmons, (1906) 54 Easton v. United Trade, etc., 148 Ala. 92, 41 So. 1023, 12 Ann. Co., (1916) 173 Gal. 199, 159 Pac. Gas. 740. Accord: Hill v. Kim- 597. ball, (1890) 76 Tex. 210, 13 S. W. 55 Keyes v. Minneapolis & St. 59, 7 L. R. A. 618. L. By. Co., (1886) 36 Minn. 290, 53 Newell v. Whitcher, (1880) 30 N. W. 888. 53 Vt. 589, 38 Am. Bep. 703. CHAPTER XXII INCONVENIENCE 88. Physical Inconvenience is a proper element of damage whether the action be in contract l or in tort, 2 subject, of course, to the usual rules as to proximity and certainty. But when inconvenience produces nothing more than annoyance or * ' worriment, " compensation is not allowed. 3 One judge, in deciding an important case, 4 seems to lay some stress upon the seriousness of the inconvenience, saying : * * I think there is no authority that personal inconvenience, where it is sufficiently serious, should not be subject of damages to be recovered in an action of this kind." The question how serious incon- venience must be in order to constitute an element of damage, if seriousness forms the sole criterion, is mani- festly very difficult. But it is obvious that not all degrees of inconvenience are of sufficient importance to claim the attention of a court, and probably no more satis- factory or practicable plan will ever be found than to make seriousness of the inconvenience the determining factor and to say that no inconvenience shall be com- pensated for unless it be of sufficient seriousness to war- 1 Hobbs v. London & S. W. Co., (1896) 15 Wash. 213, 46 Pac. Ry. Co., (1875) L. E. 10 Q. B. 111. 243, 55 Am. St. Rep. 883, quoting 1 2 Baltimore & P. R. Co. v. Fifth Sedg. Dam. (8th ed.) 42, as fol- Baptist Church, (1883) 108 U. S. lows: "Damages will not be given 317, 27 L. ed. 739, 2 Sup. Ct. 719; for mere inconvenience and annoy- wherein physical inconvenience to ance, such as are felt at every dis- plaintiff church was occasioned by appointment of one's expectations, smoke, noise, and adors from de- if there is no actual physical or fendant's machine shop. See also mental injury." On the facts in Chicago & A. R. Co. v. Flagg, the case, the damages for "worri- (1867) 43 111. 364, 92 Am. Dec. 133, ment" and disappointment result - a case of wrongful expulsion from ing from the inconvenience caused, defendant 's train, resulting in phys- were too remote to be recovered, ical inconvenience to plaintiff. 4 Hobbs v. London & S. W. Ry. 3 Turner v. Great Northern Ry. Co., (1875) L. R. 10 Q. B. 111. 185 186 LAW OF DAMAGES rant the granting of compensation. The plaintiff Has a right to recover for clearly physical inconvenience. 5 To hold that inconvenience, to be the basis of damages, must be not only physical, but also ascertainable by some pecuniary standard, is perhaps going rather far; but it has been so held. 6 It would seem that inconvenience could often be considerable, without being such as to affect the pecuniary means of the person wronged. It is very difficult to state a complete and unfailing general rule on the subject, but it is safe to say that the courts are not inclined to allow substantial damages for incon- venience, annoyance, or discomfort depending merely upon the taste or imagination of the plaintiff. 7 CASE ILLUSTRATIONS 1. A railroad company negligently carries a passenger be- yond his destination. Among the elements of damage is incon- venience. 8 2. A telegraph company instituted condemnation proceed- ings against a railroad company, in order to secure the privi- lege of constructing a telegraph line along the railroad's right of way. "Any inconvenience or annoyance resulting from the construction of the telegraph line, which is of such a character as to interfere in any way with the operation of the railroad by reason of the construction of the telegraph line, may prop- erly be considered by the jury in assessing damages; but the evidence must disclose the facts from which such inconveniences or annoyances result ; no presumption of fact can be drawn that any special annoyance or inconvenience will result solely be- cause of the construction of the telegraph line. ' ' 9 5 Southern Kansas Ry. Co. v. 8 Simmons v. Seaboard Air-Line Rice, (1888) 38 Kan. 398, 16 Pac. R. Co., (1904) 120 Ga. 225, 47 S. 817, 5 Am. St. Rep. 766. E. 570, 1 Ann. Gas. 777; Dalton 6 Detroit Gas Co. v. Moreton v. Kansas City, F. S. & M. R. Co., Truck, etc., Co., (1897) 111 Mich. (1908) 78 Kan. 232, 96 Pac. 475, 17 401, 69 N. W. 659; Hunt ads. D'Or- L. R. A. (N. S.) 1226. val, (1838) Dudley (S. Car.) 180. 9 Atlantic Coast Line R. Co. v. 7 Cleveland v. Citizens Gas Postal Telegraph-Cable Co., (1904) Light Co., (1809) 20 N. J. Eq. 201; 120 Ga. 268, 48 S. E. 15, 1 Ann. Westcott v. Middleton, (1887) 43 Gas. 734. N. J. Eq. 478, 11 Atl. 490. CHAPTER XXIII REPUTATION 89. Injury to Reputation is usually a non-pecuniary element of damage; but, in some instances, it is a pe- cuniary element, as where the injury is to one 's financial reputation. 1 Damage to reputation appears in several types of cases, notably in slander and libel. 2 It fre- quently figures also in cases of malicious prosecution. 3 A parent or husband, suing for the seduction of a daughter or wife, has a right to recover for the disgrace or dis- honor inflicted upon him and his family. 4 Injury to financial reputation is a prominent element of damage in actions for wrongfully dishonoring checks. 5 In libel, it is usually held that "the defendant may introduce evidence, in mitigation of damages, that the plaintiff's general reputation, as a man of moral worth, is bad, and may also show that his general reputation is bad with respect to that feature of character covered by the defamation in question; and, as to the admission of such evidence, it is immaterial whether the defendant has simply pleaded the general issue, or has pleaded a justification as well as the general issue. " 6 So also in 1 Lawrence v. Hagerman, 5 J. M. James Co. v. Conti- (1870) 56 111. 68, 8 Am. Rep. 674. nental National Bank, (1900) 105 3 Swift v. Dickerman, (1863) Tenn. 1, 58 S. W. 261, 51 L. R. A. 31 Conn. 285; Sickra v. Small, 255. (1895) 87 Me. 493, 33 Atl. 9, 47 6 Sickra v. Small, supra. See Am. St. Rep. 344. also Duval v. Davey, (1877) 32 (X 3 Lytton v. Baird, (1883) 95 St. 604. Ind. 349. 4 Matheis v. Mazet, (1894) 164 Pa, 580, 30 Atl. 434. 187 188 LAW OF DAMAGES slander, the defendant's right to prove the bad reputation of the plaintiff in mitigation of damages, is very clear, on the same principle as in libel. 7 But a Connecticut case says: "No rule of law is better settled that that in actions of slander the defendant shall not be permitted to prove the truth of the words for the purpose of mitigat- ing the damages. If the charge is true, that may be pleaded in justification, and must be so pleaded, or notice of justification must be given at the time of plead- ing, or it cannot be proved upon the trial." 8 7 Georgia v. Bond, (1897) 114 8 Swift v. Dickerman, (1863) Mieh. 196, 72 N. W. 232. 31 Conn. 285. CHAPTER XXIV Loss OF SERVICES 90. The Master's Right to Damages Matters Consid- ered in Computing. The relation of master and servant has been, from early times, recognized as an important one, entitling the master to the services of the servant and giving him a right to have damages assessed against any person committing such a wrong as deprives the master of the services of his servant. Likewise, the parent has a right to the services of his minor child, and he has a right, good against all except the child himself, to the services of a child who has come of legal age and continues to live in the parent's household. So has the husband a right to the sendees of his wife. Like the master, the father or the husband has a right to damages against any person wrongfully depriving him of such services. Loss of services, as an element of compensa- tion, commonly figures in cases of personal injury or seduction of a child of the plaintiff. The pecuniary value of the services lost is the measure of damages for this element, but other elements of loss sometimes enter into the same case. In arriving at the amount to be awarded for loss of services, consideration must be given the char- acter of the services, the fitness of the servant to give such services, the term for which the services would have been rendered but for the tort of the defendant, and the amount usually paid for such services. 1 1 Further treatment of this sub- "Seduction," and elsewhere in the ject is found in Chapter XLIX, treatment of particular wrongs. 189 190 LAW OF DAMAGES CASE ILLUSTRATIONS 1. A entices away B, a servant of C. The latter may main- tain an action on the case against A for the loss of B's serv- ices. 2 2. Plaintiff brings action for seduction of his daughter. Loss of her services is an element of damage. 3 2 Forbes v. Morse, (1896) 69 3 Cook v. Bartlett, (1901) 179 Vt. 220, 37 Atl. 295. Mass. 576, 61 N. E. 266. CHAPTER XXV EXPENSES OF LITIGATION 91. Taxable Expenses of Litigation Limited to Court Costs. In the early days of the common law, no costs, as such, were awarded to either party; but costs were in- cluded in the quantum of damages. 1 Today, however, a judgment obtained at common law carries with it court costs, as such, consisting of taxable fees and, as a general rule, of nothing else. 2 There can be no recovery for the time, trouble and annoyance incident to the suit, nor for consequential losses accruing because of it. 3 92. Counsel Fees. At common law, the successful party usually has no right to have the fees of his attorney, as such taxed against his opponent. 4 The defendant may have won a case that has been vexatiously and senselessly concocted and protracted by the plaintiff ; or the plaintiff may have been victorious in a case in which the defendant has very wrongfully put the plaintiff to the trouble of resorting to a court for a remedy. Yet, in neither case will the court ordinarily allow counsel fees to the suc- cessful party. Each party to the action must pay his own lawyer. A number of reasons are assigned for this rule, among which are : the difficulty in setting the amount of such fees, whether they be set by court or jury ; the impossibility of stating accurately the amount of ex- 1 3 Blackstone 399. erally recoverable as damages in 2 Day v. Woodworth, (1851) another action." Marvin v. Pren- 13 How. 363, 14 L. ed. 181. tice, (1884) 94 N. Y. 293. ' ' Costs usually are but an inci- 3 13 Cyc. 79. dent of the litigation, and to be 4 Day v. Woodworth, supra. disposed of therein, and not gen- 191 192 LAW OF DAMAGES penditure for counsel actually occasioned by the prosecu- tion or defense of the action; and the impracticability of determining the good faith of the defendant or the plaintiff. Counsel fees paid in prior actions have, however, often been allowed at common law ; but it seems that, in every instance of the kind, the conduct of the party against whom they were allowed, so directly and certainly caused the expenditure for this purpose, that the loss of the amount so paid was easily within such causal relation to the defendant's wrong as to warrant the assessment of damages in compensation for it. 5 In an action for mali- cious prosecution, counsel fees paid in defense of the action wrongfully brought are clearly such a loss as must constitute a basis of compensation. "When actions are brought to recover indemnity either where the right to indemnity is implied by law or arises under a contract, reasonable counsel fees which have been incurred in resisting the claim indemnified against may be recovered as a part of the damages and expenses. * * * So where the plaintiff, in consequence of the wrongful conduct of the defendant, has been put to ex- pense in the employment of counsel, the amount so paid is an element of damage in an action against the defend- ant arising out of such wrongful conduct. ' ' 6 Some malicious torts have sometimes been treated as exceptions to the general rule that no compensation for counsel fees will be allowed; but no satisfactory state- ment of the principles governing this branch of the sub- ject has ever been evolved by any court. 7 In some juris- dictions, counsel fees may be recovered in cases in which 5 Levitzky v. Canning, (1867) 7 See Cleveland, C. & C. R. Co. 33 Calif. 299. v. Bartram, (1860) 11 O. St. 457; 6 Sears v. Inhabitants of Na- and White v. Givens, (1877) 29 hant, (1913) 215 Mass. 234, 102 La. Ann. 571. N. E. 491. See also Inhabitants of Westfleld v. Mayo, (1877) 122 Mass. 100, 23 Am. Rep. 292. EXPENSES OF LITIGATION 193 exemplary damages are given ; 8 but such a rule seems to be founded more on sentiment than on principle. Numerous and varied statutory and judicial regula- tions as to costs have been made in the several states. 9 93. No Damages Assessed to Cover Expenditures Made for Improvident Defense of Previous Action. Al- though it is well recognized that the plaintiff who, in- nocently relying upon his contract with the defendant, defends an action which is the natural and probable con- sequence of defendant's breach and which also proxi- mately results therefrom, is entitled to recover of defend- ant the reasonable expenses of such defense, it does not follow that he is always entitled to recover such expenses merely because he has defended. A defense may have been the best apparent means of mitigating damages; but, on the other hand, defending the action may have been so clearly useless as to amount to a mere unneces- sary increase of the plaintiff's loss. In such a case, the plaintiff's expenditures in the defense cannot be con- sidered a recoverable element of damage. For instance, where A sells and warrants a horse to B as sound, and B, relying upon the warranty, re-sells him to C with a warranty of soundness, and C sues B on his warranty, and B defends the action, w r ell knowing by this time that the horse does not comply with the warranty and that his defense will be in vain, B cannot, in an action against A on the warranty, recover his expense incurred in defending the action brought against him by C. Knowing that it was useless to defend, he was needlessly increas- ing his damage, and the loss of the amount of these ex- penses was a proximate result of his own improvidence, and not a proximate result of the defendant's breach of warranty. 10 8 Yazoo & M. V. B.