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Judgmeni affirmed.
The other judges concurred.

NoTB BT THB Ra POBM UL — lo R«fiina ▼. Salmoit, 48 U T. (N. 8.) 673, three penons w«Bt
out together for rifle practioe. They selected a field near to a house and put up a target
in a tree at a distance of about 100 yards. Four or five shots were fired, and by one of
them a boy who was in a tree in a garden at a distance of 3B8 yards was killed. It was not
clear whidi person fired the shot that killed the boy. Held, that all three were guilty of

OouERiDOB, C. J., said : ^ I am of opinion that the conviction was ri^t and ought to be
affirmed. If a person does a thing which in itself is dangerous, and without taking proper
precautions to prevent danger arising, and if he so does it and kills a person, it is a crim-
inal act as sgalnst that person. That would make it clearly manslaughter as regards the
prisoner whose shot killed the boy. It follows as the result of the culpable negUgenee of
this one that each of the prisoners is answerable for the acts of the others, they all being
engaged In one oonunon pursuit/*

Fold, J., said: ^lamof thesameoptekm. At first I thought it was necessary to show
some duty on the part of the prisoners as regards the boy, but I am now satisfied that there
was a duty on the part of the prisoners toward the public generally, not to use an Instru-
ment likely to<»u8e death, without taking due and proper precautions to prevent injury to
the public. Looking at the character of the spot where the firing took place, there was
sufficient evidence that all three prisoners were guilty of culpable negligence under the

Lopis, J., concurred.

Stephen, J., said: **I am of opinion that all three prisoners were guilty of manslaughter.
The culpable omission of a duty which tends to preserve life Is homicide; and it is the
duty of every one to take proper precautions In doing an act whidi may be dangerous to
life. In this case the firing of the rifle was a dangerous act, and all three prisoners were
jointly responsible for not taking proper precautions to prevent the danger."

Watkiic Willums, J„ concurred.

Smith v. City Council of Alexandria.

(38 Gratt. 906.)

Municipal corporation — negUgence — gurfac&ioaUr.

If a municipal corporation, in filling up a street, unneoeeearily and negUgenUx
tnms water which formerly flowed through the gutters, upon the adjoining
lots, it is liable to the lot-owners for the injury.*

ACTION for injury to a city lot, caused by the turning of sur-
face-water^ formerly flowing in the gutters, upon the lots, in
the grading of the street by the city authorities. The defendant
had judgment on demurrer below.

* See Nw^ian v. City of Albany (79 N. Y. 470), 3S Am. Rep. 640.

Digitized by


APRIL TERM, 1880. 789

Smith y. City Coancil of Alexandria.

John W, Johnson^ for appellant.
C. E. Stuarty for appellee.

Burks, J. A writ of error to the judgment below, sustaining a
demurrer of the defendants to the plaintiff's declaration, presents
the only question for decision here, to wit, whether the material
allegations being admitted by the demurrer to be true, the declara-
tion states a good cause of action.

The suit was brought to i^ecover compensation for damage by
water to the plaintiff's lot in the city of Alexandria, occasioned, aa
alleged, by the grading of certain streets in the city by the defend-
ants, the city council.

Among the powers expressly conferred by the charter upon the
city council is the power " to pave, make and repair the streets and
highways, * * ♦ whenever they shall deem it proper, * * *
to open, extend, regulate, pave and improve the streets within the
limits of the city;" and they are required "to make to the person
or persons who may be injui*ed by such opening or extension just
and adequate compensation out of the funds of the corporation."
Acts of 1870-71, ch. 73, § 14. No compensation is provided for
any persons sustaining damage by the exercise of the powers
granted, except the persons just mentioned, for whom provision
was necessary under our Constitution, which forbids the passage of
any law by the general assembly, *' whereby private property shall
be taken for public uses without just compensation." Const of
Va. art 5, § 14.

The validity of this legislative act, similar to the charters of
most of our cities and towns in respect to streets, has not been and
cannot be questioned, and the city council having full discretionary
power thereunder to improve the streets of the city by grading
them, the due exercise of the power cannot, in the nature of things,
be wrongful, in a legal point of view; and hence, although it may
be attended or followed by damage, as a necessary incident, to the
owners of adjacent lots, such damage is what is known in the law
as damnum absque injuria^ and imposes no legal liability.

A distinguished jurist, who has given special attention to tho
law of municipal corporations in his valuable treatise, expresses the
pnnciple thus: '^ In view of the nature of streets (explained in a
former chapter), and of that control over them which of right be-

Digitized by



Smith V. City Council of Alexandria.

longs to the State, and of the nature of the ownership of lots
bounded thercou, whicli implies subjection, if not consent, to the
exercise and determination of the public will respecting what
grades or changes in the grades thereof shall, from time to time, be
found necessary, and what other improvements thereon or therein
(within the legitimate purposes of streets), shall be found expedient,
it results, we think, that adjoining property owners are not enti-
tled, of legal right, Avithout statutory aid, to compensation for
damages which result as an incident or consequence of the exercise
of this power by the State or the municipality by delegation from
the State."

'* Accordingly," he says, " the courts by numerous decisions in
most of the States have settled the doctrine that municipal cor-
porations, acting under authority conferred by the legislature to
make and repair, or to grade, level and improve streets, if they
exercise reasonable care and skill in the performance of the work
resolved upon, are not answerable to the adjoining owner, whose
lands are not actually taken, for consequential damages to his
premises, unless there is a provision in the charter of the corpora-
tion, or in some statute, creating the liability." 2 Dill, on Mun.
Corp., g§ 783, 783.

The numerous decisions referred to by the learned author in the
note to section 783 show that the doctrine stated in the text pre-
vails in the Federal courts and in almost all the States of the
Union. We think it has its foundation in the principles of the
common law and must prevail here as elsewhere, unless and until
it shall be modified or abrogated by legislation.

The following, among the multitude of cases cited, are selected
as in point: Callendar v. Marsh (opinion by Chief Justice Parkbr),
1 Pick. 418; RadcliJ^^s ExWs v. Mayor (opinion by Chief Justice
Bronson), 4 Comst. 195; Wilson v. MayoVy 1 Den. 595; Smith v.
Corp. of Washington, 20 How. 135; Mills v. City of Brooklyn, 32
N. Y. 489; Carr v. Northern Liberties, 35 Penn. St. 324; O'Connor
V. Pittsburgh (opinion by Chief Justice Gibson), 18 id. 187; CUy
of Delphi V. Evans, ^Q Ind. 90; s. c, 10 Am. Rep. 12; City oj
Madison v. Ross, 3 id. 236; Ltee v. City of Minneapolis, 22 Minn.
13; Cheever v. Shedd, 13 Blatch. 258; City of St. Louis v. Oumo,
12 Mo. 414; Hoffman v. City of St. Louis, 16 id. 651; Keasy v.
Louisville, 4 Dana, 154 (opinion by Chief Justice Bobbbtson)|
Mayor t€ Council of Rome v. Omberg, 28 Qa. 46; WhUe r.

Digitized by


APRIL TERM, 1880. 791

Smith V. City Coaocil of Alexandria.

Yazoo City, 27 Miss. 357; Simmons v. City of Camden^ 26 Ark.
276; 8. c, 7 Am. Rep. 620; Humes v. Mayor £ Aldermen of Knox-
mlky 1 Humph. 403; Dorman v. City of Jacksonville^ 13 Fla. 538;
8. c, 7 Am. Rep. 253.

Robertson, C. J., m Keasy v. Louisville^ supra, while admitting
the general rule to be that the law gives no damages where there
has been neither trespass nor uuisance, seemed to think that there
might be extreme cases where the deprivation of the use of property
not touched might entitle the owner to compensation from the
public. Sec, also, Ashley v. Port Huron (decided in 1877, opinion
by CooLKY, C. J.), 35 Mich. 296; 8. c, 24 Am. Rep. 562 ; Inman v.
Tnpp, 11 R I. 520; s. c, 23 Am. Rep. 520; Pumpelly v. Oreen Bay
Company, 13 Wall. 166; Baion v. B. C. M. B, B. Co., 51 N. H.
504 ; 8. c, 12 Am. Rep. 147.

The cases agree, that the exemption from liability for consequen-
tial damages depends upon or rather implies the due exercise of the
power delegated — the observance of reasonable care and skill in
the execution of the work undertaken; for as has been correctly
said, the pnnciple is a general one, that while there is no implied
liability for damages necessarily occasioned by the construction of
any municipal improvement authorized by law, yet if the work thus
authorized be not executed in a proper and skillful manner, there
will arise a common-law liability for all damages not necessarily in-
cident to the work, and which are chargeable to the unskillful or
improper manner of executing it. 2 Dill, on Mun. Corp. (2d ed.),
§ 802, and cases cited.

In the case of Perry v. City of Worcester, 6 Gray, 544, Chief
Justice Shaw, after stating the rule of exemption from liability in
an action, as for a tort, for damage necessarily done to the property
of another in the execution of a work authorized by public use,
observes, that " this presupposes that the public work thus author-
ized will be executed in a reasonably proper and skillful manner,
with a just regard to the rights of private owners of estates. If
done otherwise, the damage is not necessarily incident to the
accomplishment of the public object, but to the improper and
unskillful manner of doing it. Such damage to private prop-
erty is not warranted by the authority under color of which it is
done, and is not justifiable by it It is unlawful, and a wrong for
the redress of which an action of tort will lie." The same principle

Digitized by



Smith T. City Council of Alexandria.

isreaflbmed by the same eminent jadge in Sprague v. City of Wor^
cester, 13 Gray, 193.

And Mr. Justice Blackburn in Mersey Docks v. OibbsAnd Same
V. Pierce, 11 H. of L. Cas. 713 (marg. p.), remarks, "that though
the legislature has authorized the execution of the works, it does
not thereby exempt those authorized to make them from the obli-
gation to use reasonable care that in making them no unnecessiuy
damage be done; " and he refers to BrtncY. Oreat Western Ry, Co.^
2 Best & Smith, 402, 411, where Mr. Justice Crompton says, that
*^ the distinction is now clearly established between damages from
works authorized by statutes, where the pai'ty generally is to have
compensation, and the authority is a bar to an action, and damage
by reason of the works being negligently done, as to which the own-
er's remedy by way of action remains. The distinction is as appli-
cable to works executed for one purpose as another.^' The cases of
Creal v. Ctiy of Keokuk, 4 G. Greene, 47; City of McGregor v. Boyle,
34 Iowa, 268, and EUis v. Iowa Ctty, 29 id. 229, are apposite illus-
trations of the principle when applied to the grading of streets and
other municipal improvements. See, also, opinion of Judge Pear-
son in Meares v. Comers of Wilmington, 9 Ired. 73.

It remains to test the sufficiency of the declaration in question
by the principles of law which have been stated.

At the first view, it might seem, that the plaintiff was seeking to
recover for damages necessarily occasioned by the mere elevation of
the streets above their former grade. If this were the proper con-
struction of the declaration, no cause of action would be shown.
A careful examination howevere satisfies us, that the gravamen of
the complaint is not that the streets were elevated by the grading
whereby,, and whereby, only, damage was done to the plaintiff's
premises, but that the work was not executed with care, and was
done so negligently and improperly as to cause the damage for
which compensation is sought

The case stated is substantially this :

The plaintiff is the owner of a corner lot, at the intersection of
two streets in the city of Alexandria, which lot was inclosed, occu-
pied and used by him as a coal and wood-yard and for other pur-
poses. There was a ditch or gutter in front of the lot on each
side, which conveyed all the surface water that flowed by, from, and
over the lot to the intersection of the said streets, and thenoe, by
the means of other ditches and gutters, it passed on and into the

Digitized by


APBIL TEBM, 1880. 793

Clem V. Holmes.

proper channel and was carried off. The city council in grading
these streets elevated them three feet in front of the plaintiff's lot,
filled up the ditches and gutters, and did not cut others or provide
other means for the water to flow on and escape as formerly ; and
thus the water was stopped and thrown back on the plaintiff's lot,
causing the damage specified in the declaration, for which compen-
sation is demanded.

These acts of the city council are all charged to have been done
'^negligently, carelessly," &c., for, the terms, ^'negligently, care-
lessly," etc., as used in the declaration, should be taken, we think,
as applied and intended to be applied not only to the elevation of
the streets, but also to the filling up of the then existing ditches
and gutters and the omission to cut others or supply other means
for the escape of the water. The complaint is not of the mere
grading of the streets, a work which the council was authorized by
law to do, but of the negligent and improper manner in which the
work was done, causing damage. Whether in grading it was
necessary to fill up the ditches and gutters, and if necessary,
whether it was practicable to substitute other sufficient ditches and
gutters to take the water off, are matters of fact to be considered
on the trial, in connection with the other circumstances of the
case, in determining the question of negligence in the execution of
the work.

Our opinion is, that the judgment of the corporation court of
the city of Alexandria should be reversed, the demurrer to the dec-
laration overruled, and the cause remanded for further proceedings.

Judgment reversed.

Clem V. Holmes.

(38 Gratt. 7%3.)

EMence -^ 9eduetion— pecuniary ability of defendant.

In an action of seduction the plainti£E may give evidence of the pecuniary
ability of the defendant.*

ACTION of seduction. The opinion states the pomt. Tlie
plaintiff had judgment below.

*To same effect. White v. MurtlanA, 71 01. 260. See, also. Brown ▼. Barnes (JBO Mich
2]]), 38 Am. Rep. 375, and note, 877.

Vol.. XXXVI — 100

Digitized by



Clem T. Holmae.

Henry C. Alhn, for appellant.
jr. WaUon, for appellee.

Staples^ J. [Omitting other matters.] The second ground .of
error is, that in an action for seduction, evidence of the pecnniarj
circumstances of the defendant is not admissible byway of enhanc-
ing the damages ; and the Circuit Court therefore improperly al-
lowed the plaintiff to adduce testimony showing the value of the
defendant's estate.

It must be admitted there are very respectable authorities which
fully sustain this view . It is so laid down in Wood's Mayne on
Damages, 661 ; and the case of Hodsoll v. Tayler, L. R, 9 Q. B. 79,
is cited as authority ; and Lord Mansfield, is quoted as saying it
should be immaterial whether the damage came out of a deep pocket
or not. The learned counsel also cites Dain v. Wycoffy 3 Seld. 191,
as sustaining the same rule. Unfortunately we have here none of
the reported cases on the subject ; but if the elementary writers are
to be relied on, the great weight of modern authority is the other
way — holding it to be competent to show the position and pecuni-
ary condition of the defendant in aggravation of damages. Field
on Dam., § 699 ; 2 Greenl. on Ev., § 579 ; 5 Wait's Act and Det
668, and numerous cases there cited, 2 Hilliard on Torts 520.

It is a matter of some surprise there could ever have been a ques-
tion as to tho admissibility of such evidence. As has been well said,
the damages in this action are not measured by the mere loss of ser-
vice or the necessary expenses incurred ; but they are given also
to punish the seducer for the anguish and dishonor the outrage
brings upon the parent. These damages are not merely compensa-
ting — they may be exemplary in their nature. The rank and con-
dition of tho parties; the injury to the most sacred feelings and affec-
tions ; the shame and disgrace cast upon the family; and the
anguish of mind in having a daughter whose society brings no
comfort to the parent, and whose example may corrupt other mem-
bers of the family, are all proper to be considered. This being so,
the jury, in fixing the amount of tho recovery, may and ought to
have reference to the pecuniary circumstances of the defendant
In all such cases the wrong is aggravated in proportion to the wealth
and position and rank of tlie guilty party. All of which may be
the instruments by whieli he more readily accomplishes his purposes.

A verdict whicli would he absolutely ruinous to a man in moder-

Digitized by


JANUARY TERM, 1880. 795

Baocigalupo v. Commonwealth.

ate circamstances would scarcely be felt by one possessed of a large
fortune, and would be but an invitation to a renewal of the offense
whenever the opportunity occured for its commission. If the jury
believe the plaintiff is entitled to vindictive damages they will the
more readily give them where they are satisfied the defendant is
able to pay, then they would be where the appeal is made that the
verdict would reduce the defendant to bankruptcy and ruin. At all
events it is better to place the jury in full possession of all the facts as
to the condition and circumstances of the parties, then to leave them
to grope their way in the dark, and to base their verdict upon fanci*
f ul conjectures and rumors. See McAtday v. Birkhead, 13 Ired.
28, and cases already cited.

[Omitting other matters.]
The other judges concurred.

JudgmerU affirmed.



Oriminal law — evidence — insanity — burden of proof,

Whero iDBanity is set up as a defense in a criminal action, the boiden to
on the defendant to prove it bejond a reasonable doubt.*

CONVICTION of assault with intent to kill. The opinion states
the point.

John B, Young and John S. Wise, for prisoner.
Altomey-Oeneralf for Commonwealth.

Christian, J. This is a writ of error to a judgment of the
hustings court of the city of Richmond. The plaintiff in error
was convicted in said court of an assault with intent to kill his
wife, Mary Baccigalupo, and that said assault was made feloniously
and maliciously.

The murderous assault was distinctly proved. It was proved,
that on the night of the 15th March, 1879, the prisoner, while

•Compare BomvAr. StaU (68 Ala. 307), 85 Am. Bep. 90.

Digitized by



Baodgmlapo v. Commonwealth.

walking with his wife, on a narrow and unfrequented street on the
bank of the canal basin, made a sudden assault upon her and
inflicted upon her person nine wounds with a knife, and attempted
to throw her in the canaL

The jury found him guilty of this offense, and fixed the term of
his imprisonment in the penitentiary at eight years ; and thereupon
the said court entered a judgment in accordance with said verdict
To this judgment a writ of error was awarded by one of the judges
of this court

In the petition three grounds of error are assigned, to wit :

1. That the court erred in overruling the motion to quash the
writ of venire facias.

2. That the court erred in overruling his motion in arrest of

3. That the court erred in overruling his motion for a new trial
— first, upon the ground that the verdict was contrary to the law
and the evidence ; and second, upon the ground of newly-discovered

[Omitting other matters, upon the second head of the third point
the court said :]

In defense to a criminal prosecution upon the ground of insanity,
it is not sufficient that the evidence should be of such a character
only, as to produce a doubt on the minds of the jury, but the onus
probandi is always on the accused to prove such insanity to their

In BoswelVs case, 20 Oratt. 860, one of the grounds of error
assigned was that the court in that case gave to the jury the fol-
lowing instruction, to wit : ''That every man is presumed to be
sane, and to possess a sufficient degree of reason to be responsible
for his crimes until the contrary is proved to the satisfaction of the
jury." In commenting upon this instruction, the president of this
court said, " I think this instruction is unexceptionable. * ♦ *
He (the counsel for the accused) seems to think that all the proof
required by law to repel the said presumption was only so much as
would raise a rational doubt of his sanity at the time of committing
the act charged against him. Now I think this is not law ; and
that the law is correctly expounded in the instruction given by the
court There are certainly several American cases which seem to
sustain the view of the prisoner's counsel. But I think the decided
weight of authority, English and American, is the other way. In

Digitized by



Pxioe y. CJommonwealth.

1 Whart. Am. Or. Law, § 71I9 the writer says : '^ At common law
the preponderance of authority is that if the defense be insanity,
it must be substantially proved as an independent fact" And for
this proposition, a number of cases are cited. And after reference
to many of them, he concludes as follows : '*' I think the fair result
of them all is to show that insanity when it is relied on as a defense
to a charge of crime must be proved to the satisfaction of the jury,
to entitle the accused to be acquitted on that ground. * * *
The law presumes every person sane till the contrary is proved.
The Commonwealth having proved the corpus delicti, and that the
act was done by the accused, has made out her case. If he relies
on the defense of insanity, he must prove it to the satisfaction of
the jury. If upon the whole evidence they believed he was insane
when he committed the act they will acquit him on that ground ;
but not upon any fanciful ground that though they believe he was
then sane, yet as there may be a rational doubt of such sanity, he
is therefore entitled to an acquittal. Insanity is easily feigned, and
hard to bo disproved, and public safety requires that it should not
be established by less than satisfactory evidence."

These principles so clearly declared by the unanimous voice of
this court speaking through its president in BoswelVs case, we think
apply with full force and very aptly to the case at bar ; and upon
the whole we are of opinion that there is no error in the judgment
of the said hustings court of the city of Richmond, and that the
same must be affirmed.

Judfffnent affirmed.

Pbick v. Commonwealth.


OrimirujU law — jurisdictioji — amendmenl of judgment.

On a trial for morder, a verdict was rendered of involuntary manslaaghter,
and the jurj assessed a fine. The court thereupon discharged the prisoner.
Afterward, at the same term, the court set aside the judgment, in the ab>
sence of the prisoner, and entered judgment for the fine assessed, and fofl
imprisonment. Held, valid.

/CONVICTION of manslaughter. The opinion states the case.

Digitized by



Price v. CommonweAlth.

John OHmeTy for appellant

1%$ Attorney' General, for Oommon wealth.

Akdbbson, J. The plaintiff in error was indicted in the Oountj
Oourt of PittsylTania county for murder. On the 25th of October,
1879, the jury rendered a verdict, as follows: " We, the jury, find
the prisoner, Nathaniel L. Price, not guilty of murder, as charged
in the within indictment, but guilty of involuntary manslaughter,
as charged therein, and fine him $500."

It appears from the entry made on the record, that ^ thereupon
proclamation being made as the manner is, and nothing further
appearing, or being alleged against the said prisoner," the court

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 88 of 123)