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In the absence of malice, punitive damages may be inflicted as a method of enforcing upon the corporation obedience to the duties required of it as a common carrier, even in cases where no personal spite can be possible. Brown v. Memphis & C. R. Co., 7 Fed. R., 51 (§§ 208-13).

§856. Evidence that the defendant, in an action for assault and battery, acted hastily and under excitement, caused by an attack on the defendant's son, is admissible to reduce the damages from exemplary to compensatory. Cushman v. Waddell,* 1 Bald., 57.

§ 857. In an action for damages for a wrongful seizure under attachment process, if the jury find that the seizure was wrongful, but made in good faith, they should find for the plaintiff, giving him only actual damages proved; but if the jury find that the seizure was wrongful and made in bad faith or maliciously, they may assess proper punitory damages in addition to actual damages proved. Tiblier v. Alford, 12 Fed. R., 263.

§ 858. Where there has been great recklessness by the driver of a stage-coach, exemplary damages should be given. Peck v. Neil,* 3 McL., 22.

§ 859. In an action for a violation of a patent-right, plaintiff can recover only actual damages, not punitory damages. Whittemore v. Cutter, 1 Gall., 478.

860. Where a tortious injury has been inflicted recklessly or wantonly the plaintiff is entitled to exemplary or punitive damages. Malloy v. Bennett,* 15 Rep., 321.

§ 861. A collector of the customs is a ministerial officer, and, when he acts in good faith, for an injury done he is not liable to exemplary, but only to compensatory, damages; but he can claim no further exemption where his acts are clearly against law. Tracy v. Swartwout, 10 Pet., 80.

§ 862. Goods lost in transitu.- Where a cargo is lost in transitu by a collision or other tort, the measure of damages is the value of the goods at the time and place of shipment. The Vaughan and Telegraph, 14 Wall., 267.

§ 863. Misfeasance of officer. If a marshal levies on the property of a third person pursuant to instructions, without any abuse of his authority, he is liable only for the injury actually sustained. In such cases the rule of damages is the value of the goods, with interest from the time of taking them; or, if they are articles of merchandise, from the expiration of the usual term of credit on sales. Pacific Ins. Co. v. Conard, 1 Bald., 138.

§ 864. Where an officer is sued for an official misfeasance the plaintiff can recover only his actual loss arising therefrom. Pierce v. Strickland, 2 Story, 292.

§ 865. Libel and slander. In an action of slander, where special damages are claimed on account of the plaintiff having been prevented from obtaining employment by reason of the slander, the court may properly instruct the jury that they may take into consideration the pecuniary condition of the defendant in assessing damages. Cramer v. Cullinane,* 2 MacArth.. 197.

§ 866. In assessing damages in an action for libel the jury may take into consideration the injury to the plaintiff's feelings caused by the libelous publication. Malloy v. Bennett,* 15 Rep., 321.

§ 867. Wrongful conversion of ore.- In trespass for digging and carrying away lead ore from the lands of the United States, the government is not entitled to recover as damages the value of the ore after it is dug. United States v. Magoon, 3 McL., 171.

§ 868.

- of whale.-The damages for the conversion of a whale in the Okhotsk sea should be measured by the value of the oil and bone at New Bedford — that place being the ruling market of the country at the time of the conversion, and being the home port of both vessels less the expense of cutting in and boiling, freight and insurance, and plus interest at six per cent. upon the amount thus obtained. Bourne v. Ashley, 1 Low., 27.

§ 869. For deceit.- In an action on the case for a deceit in selling a ves el as a British vessel, she being in fact not British nor entitled to a British national character, held, that the plaintiff was entitled to damages to the extent of the difference between the value of the vessel as sold, and her value if her real character had been known, and also to damages to the amount of such repairs made on her, on the faith of the representation of her British character, as had not been remunerated by her earnings or in any other way. Sherwood v. Sutton, 5 Mason, 1.

§ 870. For failure to deliver message.- Plaintiff sued for damages, charging that the defendant negligently permitted its messenger to deliver to them a false and forged telegram to the effect opposite to that of the genuine message sent by their correspondent. The true message was that their correspondent had drawn no such bill as was offered for discount. The bill was, for want of this dispatch, discounted by plaintiff for Sackett and the money paid to him. It was contended by the defendants that because the plaintiffs had the genuine indorsement of Sackett, who was still solvent, the measure of damages was merely the amount paid for the dispatch sent. Held, that the telegraph company, as tort-feasor, was liable for the damages sustained by the injured party, whether the law gave the plaintiff a

remedy against other parties or not. When a wrong-doer is sued he is not allowed to plead to all but nominal damages, that, by suing other solvent parties either in an action of tort or on contract, the plaintiff can recover full compensation for the injury. Strause v. Western Union Telegraph Co.,* 8 Biss., 104.

§ 871. For death. In an action for damages resulting from the death of another, there is no fixed measure of damages, and no artificial rule by which the damages in a given case can be computed. The jury should not take into consideration the pain suffered by the deceased, nor the wounded feelings of surviving relatives, and no damages should be given by way of punishment. All the circumstances attending the death of the deceased should be taken into consideration in estimating the amount of pecuniary consideration, and the relations between him and his next of kin, the amount of his property, the character of his business, and the prospective increase in wealth likely to accrue to a man of his age with the business and means which he had. The possibility that the estate of the deceased might have decreased rather than increased should also be taken into consideration; also the contingency that if single he might have married, and his property descended in another channel. Barrow v. Illinois Central R. Co.,* 1 Biss., 455.

$ 872. Damages for killing a person in Oregon are intended to be compensatory, not punitive. Holmes v. Oregon & Cal. R. Co., 6 Saw., 262 (S$ 108-27).

§ 873. The statute of Maryland gives an action in the name of the state for the use of the wife, husband, parent or child for the death of a member of the family, whenever such death is caused by the wrongful act or neglect of another which, if death had not occurred, would have entitled the person injured to damages. In an action by a widow against a railroad company for the death of her son, an employee of such company, the measure of damages is the amount of the pecuniary support which the jury shall find the plaintiff would have received from the deceased, and in making such estimate they shall consider the age of the plaintiff and the probable duration of her life. Maryland v. Balt. & Pot. R. Co.,* 1 Hughes, 337.

§ 874. In estimating damages the jury cannot consider the pain or mental anguish which any of the parties have sustained. Allowance must be made for pecuniary loss only, it being proper for the jury to consider the probability that had the boy lived he would have contributed towards the support of the family. Barley v. Chicago & A. R. R. Co.,* 4 Biss., 430.

§ 875. Where, in an action against a railway company for injuring a passenger, plaintiff is erroneously allowed to give evidence of his pecuniary circumstances, the error is cured by the court subsequently instructing the jury to disregard such testimony. Pennsylvania Co. v. Roy, 12 Otto, 451 (§§ 198–201).

§ 876. In an action by a passenger against a railway company for a personal injury, it is error to allow plaintiff to prove the sex and age of his children with the purpose of showing how serious the injury might be to those dependent upon him. Ibid.

§ 877. For injuries — Mental suffering, etc.- Where an action was brought to recover damages for injuries sustained by a passenger from having been thrown upon the ground from a freight train while in motion, held, that in estimating the amount of damages the jury should allow a just and reasonable compensation for the pain and suffering plaintiff had undergone, and the expenses he had incurred in consequence thereof, as under the circumstances they think he may be fairly entitled to receive from defendant. Hazard v. Chicago, etc., R. Co.,* 1 Biss., 503.

§ 878. Where a passenger is injured by the negligence of both railroad company and the company furnishing the motive power, and he brings suit against each party, and both suits are tried together, the same amount of damages should be rendered against each. The satisfaction of the judgment in one case should operate as a satisfaction in both. If the plaintiff is entitled to recover, the amount of damages to be allowed must be sufficient to compensate him for the amount of expenditures and losses by him sustained in consequence of such injury, taking also into consideration the extent of his injuries, the sufferings by him undergone, and the effect of the accident on his general health. Keep v. Indianapolis, etc., R. Co.,* 3 McC., 208; 9 Fed. R., 625.

§ 879. Where a woman was injured by a fall, caused by stepping upon some ice while alighting upon a railway platform from a train, and brought action to recover damages for injuries sustained, held, that in deciding the question of damages the jury must allow merely what will compensate plaintiff for the injury, and cannot add anything by way of punishment to the defendant. And that, in estimating the extent of this compensation, they can take into consideration the loss of time sustained, the expenses attending the cure of the injury, the length of time likely to elapse before a permanent cure is effected, and the pain and suffering undergone by plaintiff. Seymour v. Chicago, etc., R. R. Co.,* 3 Biss., 43.

§ 880. The party aggrieved is entitled to recover not only actual expenses, including medi

cal, but also a reasonable compensation for mental and bodily suffering, loss of time, and for any permanent or incurable injury inflicted. The damages must be strictly compensatory, in the absence of proof of wanton injury. Ware v. St. Paul Water Co.,* 2 Abb., 261.

§ 881. Where petitioner was injured by falling into an excavation in a public street negligently left unprotected by a tunnel company, and sought damages for injuries sustained, held, that the jury might allow damages for mere physical suffering where there had been no direct pecuniary loss. Hagan's Petition,* 5 Dill., 96.

§ 882. In determining the question of damages, the nature and extent and permanency of plaintiff's injury, his ability to earn a living since the receiving of the injury in question, as compared with his ability before that time; his pain and suffering, both mental and physical, must be taken into consideration. Gravelle v. Minneapolis, etc., R. R. Co.,* 3 McC., 352.

§ 883. Where a person sustains serious injury by falling into an excavation in one of the streets of a city, it is proper, in determining the damages for which the city is liable, to consider the nature of the injury and the pain that he has suffered, the time that he was confined and unable to attend to his ordinary business, and the amount he has expended to physicians, nurses and others. If the plaintiff at the time had been engaged in any particular business, which in consequence of the injury he was prevented from pursuing, it is proper to take that fact into consideration in estimating the damages that ought to be given. Lombard v. City of Chicago,* 4 Biss., 460.

§ 884. The plaintiff was a practicing physician, and, in the course of a trial against the defendant to recover damages for injuries received on a defective street, evidence was given that he was engaged in extensive practice at the time of the injury, and also that it was a period of great sickness in the community. Held, that the evidence in question was relevant and pertinent, with a view to show the extent and amount of the ordinary business of the plaintiff in his profession, of which it was averred he was deprived during the time of the disability, and laid a foundation which enabled the jury, with some degree of certainty, to ascertain the direct and necessary damages sustained from the injuries. Nebraska City v. Campbell, 2 Black, 590 (§ 803).

§ 885. The person guilty of negligence should pay the injured party such an amount as will compensate for pain and suffering, expense of physicians and medicines, loss of wages, where he is a laboring man, loss of business when engaged in business, physical and mental injury affecting his capacity to enter or to carry on business, including, also, continuing as well as past losses. Totten v. Pennsylvania R. Co.,* 11 Fed. R., 564. $ 886. by assault. Whether defendant acted wantonly and maliciously, or under the excitement of the occasion, the plaintiff was entitled to such damages as would compensate him for any injury he may have sustained in his person or his occupation, and all expenses incurred in consequence of the injury. Cushman v. Waddell,* 1 Bald., 57.

§ 887.

exemplary damages. The plaintiff brought action to recover damages for injuries received in a collision. Defendant admitted its negligence, and the jury found for the plaintiff. Motion for a new trial made on the grounds that the court erred in instructing the jury that it might award exemplary damages in case of the gross negligence of defendant's servants, and also that a single case of intoxication on the part of the engineer while on duty raised the presumption that he was a man of intemperate habits, and that the superintendent is presumed to know of the character of the company's employees. The motion was overruled. Held, that in cases of injury arising from the gross negligence of their employees corporations are liable to punitive damages. A railroad company acts only through its agents; the directors, the superintendent and all the employees are the agents through whom alone the company acts, and unless the company is held liable for the acts of these parties the public have neither a remedy nor security. The public have a direct interest in having these companies employ capable, honest and reliable men. And it is the duty of the companies to see that their employees are of a proper character, or courts and juries will hold them to a strict accountability for misconduct. A railroad company employs a drunken engineer; the life and personal security of the traveling public is placed in his hands; the public can know nothing of his character, and if an accident occurs, occasioned by his negligence, inattention or misconduct, the company should be held responsible for the accident, not only in compensatory damages, but punitive damages for the want of the exercise of care in the character of the employees selected. Beale v. Railway Co.,* 1 Dill., 568.

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§ 888. Counsel fees. In an action for trespass in tearing down a dam the court instructed the jury that "they might allow counsel fees, etc., if there was any excess in taking down more of the dam than was justifiable," and gave as a reason that the defendants thereby became trespassers ab initio. Held, error; that although exemplary damages might be awarded in a case where the tort was malicious, counsel fees could not be included. Day v. Woolworth,* 13 How., 363.

§ SS9. Mitigation of. If defendant fails to sustain his plea of justification he may offer in mitigation of damages anything tending to show that he acted without malice. Baker v. Kansas City Times,* 18 Am. L. Reg. (N. S.), 101.

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§ 890. The amount of damages in such cases is left to the discretion of the jury. Ibid. § 891. Excessive damages. — Where the publicity given to a libel, charging plaintiff with having committed adultery, published in defendant's paper, is very great, owing to the large circulation of such paper, a verdict for $3,875 will not be disturbed as being excessive. Gibson v. Cincinnati Enquirer, 2 Flip., 121; 5 Cent. L. J., 380 (§§ 518-20).

§ 892. In an action by a female passenger to recover damages for her wrongful and forcible expulsion from the ladies' car of defendant's train a verdict for $3,000 was rendered. The jury were charged against rendering an excessive verdict, and cautioned against prejudice and passion. Held, that the verdict was not excessive and would not be disturbed. Brown v. Memphis & C. R. Co., 7 Fed. R., 51 (§§ 208-13).

§ 893. Rule for estimating damages. Flint v. Norwich & N. Y. Transp. Co., 6 Blatch., 158 (S$ 194-95).

§ 894. Damages for disfigurement of face ($500), physical and mental pain caused by the injury ($1,000), counsel fees ($300), expenses of sickness ($100) and loss of time ($100), held proper to allow a girl injured on shipboard by a part of the cargo falling upon her. The Oriflamme, 3 Saw., 397 (§§ 228–32).

§ 895. A passenger on a ship fell through a hatchway negligently left open, injuring his knee to such an extent that he was obliged to keep his room until the arrival of the vessel in port, when he was taken home and there confined in care of a surgeon for three weeks. At the time of the trial, about one year after the accident, the effect of the injury to the knee was still felt" in great pain, just like needles," at times preventing sleep. Held, that a verdict of $2,000 was not excessive under the circumstances. Reiss v. North German Lloyd, 11 Fed. R., 844.

§ 896. Five thousand dollars for killing a woman, who was superior as a wife, mother and member of society, is not excessive. Whiton v. Chicago & N. W. R. R. Co., 2 Biss., 282. § 897. Where plaintiff was kept imprisoned for one hundred and thirteen days by military authority, whereas it was the duty of the military to deliver him over to the civil authorities within five days after his arrest, held, that a verdict for $3,500 was not excessive. Waters v. Campbell,* 5 Saw., 18.

§ 898. Miscellaneous.

A person who wrongfully sells another's land is liable to the owner for the value of the land at the time of sale, whether he receives the purchase money or not. Flagg v. Mann, 3 Sumn., 93.

§ 899. In an action for damages for the death of a horse, caused by the collision of a competing horse in a horse-race, the damages must be estimated at what is shown to have been the value of the horse killed. McKay v. Irvine,* 10 Fed. R., 725.

§ 900. To recover the total value of an article injured by the defendant, the plaintiff must prove either a total loss, or that the article was so far injured that it would cost as much as it was worth to restore it. Dowdall v. Pennsylvania R. Co., 13 Blatch., 403.

§901. A warehouse, situated on the banks of a navigable river, was ignited by sparks proceeding from the smoke-stack of a steam propeller and entirely destroyed. In an action by the owners of the warehouse against the vessel owners the latter set up in defense the act of congress of March 3, 1851, by which the liability of vessel owners is limited in certain cases to the value of the interest of such owners in the same. Held, that this act does not apply to damage done by a vessel to property situate on land, and the defendant, if liable at all, is liable for the entire amount of property destroyed. King v. American Transportation Co.,* 1 Flip., 1. § 902. Special damage was not averred in the plaintiff's declaration. Held, that special damages, whether resulting from tort or breach of contract, must be particularly averred in order that the defendant may be notified of the charge and come prepared to meet it. Special, as contradistinguished from general, damage, is that which is the natural, but not the necessary, consequence of the act complained of. Roberts v. Graham,* 6 Wall., 578.

§ 903. A seaman who is imprisoned and left behind by the vessel can recover damages against it by proceedings in rem. The damages will include wages for the time of his imprisonment and detention and money spent by him in getting away. But compensatory damages are not to be included in admiralty in such a proceeding. The Maria, Bl. & How., 331. 425

XIII. MISCELLANEOUS.

SUMMARY - City not liable for non-performance of governmental duty, § 904–906; nor for unlawful acts of officers, § 906.- Bombardment by naval officers, § 907.- Fraudulent act of notary public, § 908.- Military officers, § 909.- Acts of contractors, § 910.- Wharves, $ 911, 912.- Damage caused by city while exercising a governmental function, § 913.

$ 904. The plaintiff was the owner of a parcel of land within the corporate limits of the city of Bridgeport, upon which a planing-mill, foundry and other buildings were situate. A number of persons entered upon the plaintiff's premises and tore down and removed the buildings, and carried away the engines and machinery connected therewith, and converted them to their own use. The defendant had knowledge of their unlawful acts, but it did not perform its governmental duties. Held, on demurrer, that a city which has assumed, or on which is imposed, a public governmental duty is not liable for the non-performance or negligent performance of such duty. Hart v. City of Bridgeport, §§ 914–916.

§ 905. Public duties are in general those which are exercised by the state as a part of its sovereignty for the benefit of the whole public, and the discharge of which is delegated or imposed by the state upon the municipal corporation. Ibid.

§ 906. A corporation is not liable for the unlawful acts of its officers, committed ultra vires, and not colore officii, in the known and wilful violation of law. Ibid.

§ 907. An officer of the United States navy, in his capacity as such officer, with the naval force under his command, caused a town in a foreign country to be bombarded. Such bombardment caused the destruction of property of citizens of the United States residing there, and an action of trespass was brought against the officer. Held, (1) that it was a sufficient defense that the bombardment had been carried on in pursuance of lawful and public orders from the president of the United States and the secretary of the navy. (2) That the duty of the president to interpose for the protection of the lives and property of citizens of the United States abroad is a duty in its nature purely discretionary, and where a public act or order rests in executive discretion neither he nor his subordinates are personally civilly responsible for the consequences. Durand v. Hollins, § 917.

§ 908. Where a notary public makes a fraudulent certificate of acknowledgment of a deed of certain land, a subsequent purchaser of such land, who is compelled after discovery of the fraud to pay a large sum of money to perfect his title, cannot recover it from the notary. Ware v. Brown, § 918.

§ 909. In times of peace military officers are liable for their torts the same as civilians, and cannot excuse them by pleading the commands of a superior officer. Bates v. Clark, SS 919-922.

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$910. An act of the legislature declaring a company shall not be liable for the acts of any person or persons who shall have contracted, or who shall contract, with it to construct," etc., held merely to exempt it from liability for acts of independent contractors, and not for acts of those over whom it has control. Railroad Company v. Hanning, §§ 923–926.

§ 911. A person passing upon or over a wharf is not a trespasser, where the public has been accustomed to use it, although it has been changed to a private wharf. Notice of the change must first have been given. Ibid.

§ 912. A railway company that employs a contractor to build a wharf for it, retaining control of the manner in which he is to build it, is liable for the negligence of him or his servants in doing the work if a third person is injured thereby. Ibid.

§ 913. A transportation company owned land fronting on a navigable river in a city. The city, in the course of extending a street across the river by means of a tunnel under it, built a coffer-dam in the river, which obstructed access to the transportation company's wharf and lot for some time; and the excavations necessary for the tunnel caused a wall owned by the company to sink. It sued the city for damages. Held, no recovery, since the city, in building the tunnel, was only exercising a governmental function as agent of the state; that the case did not come within the constitutional provision requiring the compensation of owners whose property is taken or damaged for public benefit; that the case was distinguishable from a similar injury by one individual to another. Transportation Co. v. Chicago, §§ 927–

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