Theodore Sedgwick.

A treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 1) online

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or by a deliberate intention to vex, degrade, or insult. This
constitutes the difference, and the only difference between the
injury produced by inability and that produced by design. All
the other constituents are the same. The pecuniary loss,
direct and indirect, the anxiety, the tune and expense, are the
same whether a wrong be done through the honest inability,
the wiUxil fraud, or the deliberate malice of the offending party.
But in the two latter cases, the last element is superadded; a
sense of wrong or insult which does not exist in the former.^

§ 38. Perfect compensation impossible.

All the items must, therefore, be taken into the account in
any effort to make complete compensation, in the ordinary
acceptation of the word. But we shall find that the legal

' The Scotch law has endeavored special damages, consisting of the sur-
practically to analyze the elements of geon's account, and the person being
injury. By the jurisprudence of Scot- kept from his work. Second, the so/a-
land, in actions for personal torts, the tium, which is peculiarly within the
damages are divided into special dam- province of the jury." So in Cameron
ages, the actual pecuniary loss, and v. Cameron, 2 Murr. 232, "If no dam-
solalium,, solace, or recompense for the ages are proved, you cannot find them ;
wounded feeUngs. So in Forgie v. but there is a claim for solatium, and
Henderson, 1 Murray, 410, in assault you must consider what evidence there
and battery, the Lord Chief Commis- is of the injury to the mind and feel-
Bioner Adam said, "There are, first, ings."


meaning of the term is very different. In fact, unless the word
is used in a technical sense, it is altogether inaccurate to speak
of damages as always resulting in compensation; and whatever
restricted meaning this term may be supposed to have technic-
ally acquired, it is at all events entirely incorrect to say in the
language which we have above seen used by various eminent
judges, that "the remedy is commensurate to the injury."
This language attributes to legal relief a degree of perfection
which it is very far from possessing. "It would be going a
great way," said Chief -Justice Marshall,^ "to subject a debtor,
who promises to pay a debt, to all the loss consequent on his
failure to fulfil his promise. The general policy of the law does
not admit of such strictness; and although in morals a man may
justly charge himself as the cause of any loss occasioned by the
breach of his engagement, yet, in the course of human affairs,
such breaches are so often occasioned by events which were
unforeseen, and could not easily be prevented, that interest
is generally considered as compensation which must content
the injured." "It has been contended," said another eminent
judge, "that the true measure of damages, in all actions of
covenant, is the loss actually sustained. But this rule is laid
down too generally. In an action of covenant for non-payment
of money on a bond or mortgage, no more than the principal
and legal interest of the debt can be recovered, although the
plaintiff may have suffered to a much greater amount by the
default of payment." ^ And it is to be borne in mind, that the
same deficiency of compensation exists in the case of defendants
as well as plaintiffs. If the party who receives the injury is
obliged to bear his proportion of the loss — so, 'On the other
hand, the party wrongfully charged recovers his costs only,
and no allowance is made for his time, indirect loss, annoyance,
or counsel fees . ' ' Every defendant , ' ' says Mr. Broom, ' ' against
whom an action is brought, experiences some injury or incon-
venience beyond what the costs will compensate him for." ■* **
To say nothing of the anxiety and pain of mind which often
result from a breach of contract, and which the law is power-

"Shortv.Skipwith,! Brock. 103, 114. "Broom's Legal Maxims, 199; Da-

' Tilghman, C. J., in Bender v. From- vies v. Jenkins, 11 M. & W. 745, 756.
berger, 4 Dull. 436, 444.



less to assuage, all lawyers know that in most cases of the non-
payment of money when due, where the creditor has no means
of replacing it, and indeed, in a large proportion of all lawsuits,
the mere delay in obtaining such redress as can be had, entails
on the sufferer consequential damages often serious, sometimes
ruinous, for which there is no legal compensation. To quote
the language of an article '" entitled ''The Rule of Damages
in Actions ex delicto," published in the Law Reporter in
June, 1847, "In the most ordinary case of a suit on a note of
hand, the damages do not amount to compensation. Who
pays the counsel fees? Who pays for the time of the plaintiff?
Who pays for his annoyance and vexation? The most success-
ful lawsuit is too often a Barmecide feast."

But although the law does not attempt the impossibility
of replacing the plaintiff in exactly the position he was in be-
fore the injury, yet within the bounds of possibility its aim is

§ 39. The injuries for which compensation is given.

The injuries for which the common law affords a remedy,
and for which, therefore, in a proper case it gives reparation
by way of damages, are all comprised in the following classes:

Injuries to property.

Physical injuries.

Mental injuries.

Injuries to family relations.

Injuries to personal liberty.

Injuries to reputation.
It may be laid down as a general rule that an injury to any
right protected by the common law will, if the proximate or direct
consequence of an actionable wrong, be a subject for compen-

§ 40. Compensation for injuries to property.

For an injury to property resulting in its total loss compen-
sation is recoverable, measured by the value of the property
at the time of loss: the principles governing the admeasure-
ment of the value of property will be stated in a later chapter.

^ By the author.


For an injury to property result in<!; in a permanent diminution
of value, compensation may be recovered for such diminution.
Other forms of pecuniary loss may be compensated in a proper
case, such as the loss of use of property, the loss of time, etc.
All these questions will be discussed at large in later chapters.
Where the basis of recovery is a pecuniary loss, an actual
pecuniary damage must be shown to justify recovery of sub-
stantial damages. So in an action for wrongful occupation
by defendant of a public office belonging to plaintiff, where it
appeared that no salary or other emolument was attached
to the office and no actual pecuniary damage was shown, no
damages could be recovered for exclusion from the office.'' The
same principle was applied in an action for wrongful exclusion
of plaintiff from a public school. There was nothing to show
that the plaintiff, the boy himself, paid anj^thing for tuition
elsewhere; but the amount was probably paid by his parents.
It was held, in the absence of evidence that he was personally
obliged to pay for tuition elsewhere, that he could not recover

§ 41. For physical pain.

Physical pain is always regarded as a subject for compen-
sation, this compensation being its pecuniary equivalent as
measured by the jury.^ Of necessity the measurement of such

^ Palmer v. Darby, 64 Ohio St. 520, California: Fairchild v. California S.

60 N. E. 626. Co., 13 Cal. 599; Masters v. Warren, 27

' Morrison v. Lawrence, 181 Mass. Conn. 293; Lawrence v. Housatonic

127, 63 N. E. 400; ace, Douglass v. R. R., 29 Conn. 390.

Campbell, 89 Ark. 254, 116 S. W. 211, District of Columbia: Larmon v. Dis-

20 L. R. A. (N. S.) 205. trict, 16 D. C. (5 Mackey) 330; Juhn-

* United States: Wade v. Leroy, 20 son v. Baltimore & P. R. R., 17 D. C.

How. 34, 15 L. ed. 813; Bcardslcy v. (6 Mackey) 232.

Swann, 4 McLean, 333; Hanson v. Georgia: Cooper v. Mullins, 30 Ga.

Fowle, 1 Sawy. 539; Boyle v. Case, 9 146, 76 Am. Dec. 638; Atlanta & W.

Sawy. 386; Paddock v. Atchison, T. & P. Ry. v. John.son, 66 Ga. 259.

S. F. R. R., 37 Fed. 841; Carpenter v. Illinois: Pierce v. Millay, 44 111. 189;

Mexican N. R. R., 39 Fed. 315; Camj)- Indianapolis & S. L. R. R. v. Stables,

bell V. Pullman P. C. Co., 42 Fed. 484. 62 111. 313; Chicago v. Jones, 66 111. 349;

^fatama; South & N. A. R. R. t;. Mc- Chicago v. Langlass, 66 111. 361; Chi-

Lendon, 63 Ala. 266. cago v. Elzeman, 71 111. 131; Sheridan

Arkansas: Ward v. Blackwood, 48 v. Hibbard, 119 111. 307; Chicago & E.

Ark. 396; Cameron v. Vandegriff, 53 R. R. v. Holland, 122 111. 461.

Ark. 381, 13 S. W. 1092. Indiana: Indianapolis v. Gaston, 58





compensation must be left entirely to the jmy. The pain for
which the plaintiff recovers is only what is found by the jury,
although by reason of a peculiarity of his constitution his pain
would be greater than that of the ordinary man.^

§ 41a. Impairment of physical power.

This is a subject for compensation, entirely apart from the
capacity to earn money by exercise of the power.

Therefore in a case of physical injury one is entitled to be
compensated for loss of pow^r to work/" and for loss of child-
bearing power or power to beget offspring. ^^

Ind. 224; Ohio & M. Ry. v. Dickerson,
59 Ind. 317; Huntington t'. Breen, 77
Ind. 29.

Iowa: Muldowney v. Illinois C. Ry.,
36 la. 462; McKinley v. Chicago & N.
W. Ry., 44 la. 314, 24 Am. Rep. 748;
Reddin v. Gates, 52 la. 210; Stafford
V. Oskaloosa, 64 la. 251; Fleming v.
Shenandoah, 71 la. 456.

Kansas: Tefft v. Wilcox, 6 Kan. 46;
Kansas P. Ry. v. Pointer, 9 Kan. 620;
Missouri, K. & T. Ry. v. Weaver, 16
Kan. 456.

Kentucky: Kentucky C. R. R. v.
Ackley, 87 Ky. 278, 12 Am. St. Rep.
480, 8 S. W. 691.

Louisiana: Rutherford v. Shreveport
& H. R. R., 4.1 La. Ann. 793.

Maine: Mason v. Ellsworth, 32 Me.
271; Verrill v. Minot, 31 Me. 299.

Maryland: McMahon v. Northern C.
Ry., 39 Md. 438.

Massachusetts: Hawes v. Knowlcs,
114 Mass. 518, 19 Am. Rep. 383.

Michigan: Ross v. Leggett, 61 Mich.
445, 28 N. W. 695, 1 Am. St. Rep. 608.

Mississippi: Memphis & C. R. R. v.
Whitfield, 44 Miss. 466, 7 Am. Rep.
699, n.

Missouri: Stephens v. Hannibal &
S. J. R. R., 96 Mo. 207, 9 S. W. 589, 9
Am. St. Rep. 336, n; Ridenhour v. Kan-
sas C. C. Ry., 102 Mo. 270, 13 S. W.
889; Steiner v. Moran, 2 Mc. App. 47;
McMillan v. Union P. B. W., 6 Mo.
App. 434,

Nevada: Cohen v. Eureka & P. R. R.,
14 Nev. 376.

New York: Morse v. Auburn & S. R.
R., 10 Barb. 621; Brignoli v. Chicago &
G. E. Ry., 4 Daly, 182.

North Carolina: Wallace v. Western
N. C. R. R., 104 N. C. 442.

Oregon: Oliver v. Northern P. T. Co.,
3 Ore. 84.

Pennsylvania: Pennsylvania R. R. v.
Allen, 53 Pa. 276; Pennsylvania & O.
C. Co. V. Graham, 63 Pa. 290, 3 Am.
Rep. 549; McLaughlin v. Corry, 77 Pa.
109, 18 Am. Rep. 432; Scott v. Mont-
gomery, 95 Pa. 444; Lake Shore & M.
S. Ry. V. Frantz, 127 Pa. 297, 18 Atl.

Texas: Houston & T. C. Ry. v.
Boehm, 57 Tex. 152.

Utah: Giblin v. ]\lclntyre, 2 Utah,

Vermont: P'ulsome v. Concord, 46 Vt.

Wisconsin: Goodno v. Oshkosh, 28
Wis. 300.

England: Phillips v. Southwestern
Ry., 4 Q. B. Div. 400.

5 Fitzgerald v. Dobson, 78 Mo. 559, 7
Atl. 704.

'^''Georgia: Atlanta St. R. R. v. Ja-
cobs, 88 Ga. 647, 15 S. E. 825.

Missouri: Perrigo v. St. Louis, 185
Mo. 274, 84 S. W. 30.

New York: Austin v. Bartlett, 67
App. Div. 312, 73 N. Y. Supp. 156.

" United States: Denver & R. G. Ry.




§ 42. For inconvenience.

Damages will not be given for mere inconvenience and an-
noyance, such as are felt at every disappointment of one's
expectations, if there is no actual physical or mental injury. ^^
Thus where the plaintiff was delayed on the defendant's rail-
way, and was obliged to remain overnight in a place distant
from his destination, it was held that he could recover only the
cost of his night's lodging, not his disappointment and an-
noyance on account of the delay. ^^ In an action for breach of
contract to give a lease of a house, the fact that the plaintiff
is not so conveniently situated in the house subsequently pro-
cured as he would have been in the house the defendant agreed
to lease him, has been held not to be a cause of damage where
the plaintiff is not shown to have lost money by the incon-

But inconvenience amounting to physical discomfort is a
subject of compensation.^^ ''The injury must be physical,
as distinguished from one purely imaginative; it must be some-
thing that produces real discomfort or annoyance through the
medium of the senses, not from delicacy of taste or a refined

V. Harris, 122 U. S. 597, 7 Sup. Ct. 1286,
30 L. ed. 1146; Patridge v. Boston & M.
R. R., 184 Fed. 211, C. C. A.

Alabama: Alabama G. S. R. R. v.
Hill, 93 Ala. 514, 9 So. 722, 30 Am.
St. Rep. 65.

West Virginia: Normile v. Wheeling
T. Co., 57 W. Va. 132, 49 S. E. 1030,
68 L. R. A. 901.

'2 Michigan: Detroit Gas Co. v.
Moreton Truck & Storage Co., Ill
Mich. 401, 69 N. W. 659 (by wrongful
deprivation of gas, plaintiff was obliged
to use oil lamps which were cheaper;
the merely mental inconvenience was
not subject of compensation).

" Hamlin v. Great Northern Ry., 1
H. & N. 408.

'" Hunt V. D'Orval, Dudley (S. C),

*5 Illinois: Chicago & A. R. R. v.
Flagg, 43 111. 364, 92 Am. Dec. 133, n.

Kansas: Southern K. Ry. v. Rice, 38

Kan. 398, 16 Pac. 817, 5 Am. St. Rep.

Massachusetts: Emery v. Lowell, 109
Mass. 197.

Michigan: Ross v. Leggett, 61 Mich.
445, 28 N. W. 695, 1 Am. St. Rep. 608.

Missouri: McRae v. Metropohtan
St. Ry., 125 Mo. App. 562, 102 S. W.

New Jersey: Luse v. Jones, 39 N. J. L.

New York: Ives v. Humphreys, 1
E. D. Smith, 196.

Pennsylvania: Scott v. Montgomery,
95 Pa. 444.

Texas: Gulf, C. & S. F. Ry. v. Over-
ton, 101 Tex. 583, 110 S. W. 736.

But in Walsh v. Chicago, M. & S.
P. Ry., 42 Wis. 23, 24 Am. Rep. 376,
the court refused to allow damages for
the annoyance of being kept out late
at night, though physical discomfort


fancy. "^^ It must be ''such as is capable of being stated in a
tangible form, and assessed at a money value," ^"^ and is more than
mere annoyance. ^^

In a case in the Supreme Court of the United States the de-
fendant, a railroad company, had built a roundhouse near the
church edifice of the plaintiff, and interrupted the church serv-
ices by noise, smoke, and other discomforts. Field, J., said:
"The plaintiff was entitled to recover because of the incon-
venience and discomfort caused to the congregation assembled,
thus tending to destroy the use of the building for the purposes
for which it was erected and dedicated. The property might
not be depreciated in its salable or market value, if the build-
ing had been entirely closed for those purposes by the noise,
smoke, and odors of the defendant's shops. It might then,
perhaps, have brought in the market as great a price to be used
for some other purpose. But, as the court below very properly
said to the jury, the congregation had the same right to the
comfortable enjoyment of its house for church purposes that
a private gentleman has to the comfortable enjoyment of his
own house, and it is the discomfort and annoyance in its use
for those purposes which is the primary consideration in allow-
ing damages. As with a blow on the face, there may be no
arithmetical rule for the estimate of damages. There is,
however, an injury the extent of which the jury may measure."^'

So where a railroad track was wrongfully laid along the rear
of the plaintiff's land, it was held that he might recover com-
pensation for the loss and inconvenience in the prosecution
of his business. ^° And in general compensation may be re-
covered for the discomfort caused by a nuisance.-^

In Hobbs v. London & S. W. Ry. Co., ^^ the plaintiff, a pas-
senger on the defendant's railway, was set down at the wrong
station, and a verdict of £8 for inconvenience suffered by hav-

i« Bird, V. C, in Westcott v. Middle- tist Church, 108 U. S. 317, 335, 27 L.

ton, 43 N. J. Eq. 478, 486; affirmed, 44 ed. 739.

N. J. Eq. 297. 20 Hatfield v. C. R. R., 33 N. J. L.

" Baltimore & O. R. R. v. Carr, 71 251.

Md. 135, 17 Atl. 1052. " Labasse v. Piat, 121 La. 601, 46

•8 Georgia R. & E. Co. v. Baker, 1 So. 665.

Ga. App. 832, 58 S. E. 88. " l, r. iq Q. B. 111.

" Baltimore & P. Ry. v. Fifth Bap-


ing to walk home was sustained on appeal. Cockburn, C. J.,
said that Hamlin v. Great Northern Ry. Co.-'' did not, as was
contended for by the defendants, decide that personal incon-
venience could not be taken into account as a subject-matter
of damage on a breach of contract. Blackburn, J., cited
Burton v. Pinkerton ^^ as an authority to the effect that a re-
covery can be had for inconvenience. Mellor and Parry, JJ.,
distinguished the inconvenience appearing in this case, calling
it physical inconvenience, which they said could be estimated
in damages, from annoyance, loss of temper, vexation, disap-
pointment, which they thought could not be.

Where the plaintiff, a woman, was carried beyond her station
by the defendant's fault, it was held that she might recover
compensation for the discomforts of a long walk over a dusty
road in a hot day, in the course of which she had to wade across
creeks and pass at nightfall through a piece of dark woods. - ^

In most cases of contract, there is no specific recovery for
inconvenience, which may be regarded as merged in the pe-
cuniary injury. In some cases it has been suggested that per-
sonal inconvenience which is the direct consequence of tort
would be an item of compensation in such action, but that if
an action for the same injury were in form an action of contract,
the inconvenience, not being contemplated at the time the
contract was entered into, could not be considered in estimat-
ing damages. ^^ This is a question which will be discussed in
connection with the subject of natural consequences.

§ 43. For mental suffering — Early misconception of rule.

The importance of the question whether mental suffering,
as distinct from physical suffering, is ever a subject for com-

*' 1 H. & N. 408. mental pain included the inconvenience

^* L. R. 2 Ex. 340. of a walk home, and that an additional

** Indiana: Cincinnati, H. & I. R. R. recovery for inconvenience could not

i;. Eaton, 94 Ind. 474, 48 Am. Rep. 179; be allowed.

ace., Georgia: Seals v. Augusta So. R. -^ Indiana: Cincinnati, H. & I. R. R.

R., 102 Ga. 817, 27 S. E. 116. v. Eaton, 94 Ind. 474, 48 Am. Rep. 179.

Missouri: Triggs v. St. L., K. C. & Massachusetts: Murdock v. B. & A.

N. Ry., 74 Mo. 147, 41 Am. Rep. 305. R. R., 133 Mass. 15, 43 Am. Rep. 480n.

But in Texas Tr. Co. V. Hanson, Tex. Wisconsin: Brown v. C, M. & St.

Civ. App. , 124 S. W. 494, the court P. Ry., 54 Wis. 342, 41 Am. Rep.

held that the recovery for physical and 41n.


pensation, and the more or less doubtful state of the law, call
for a careful discussion.

It was early settled that substantial damages might be re-
covered in a class of torts where the only injury suffered is
mental, namely, in cases of assault without physical contact.-^
Moreover, in actions for false imprisonment where the plaintiff
was not touched by the defendant substantial damages have
been recovered, though physically the plaintiff did not suffer
any actual detriment. -^ But when the question of allowing
damages for mental pain came directly before the courts, these
cases seem to have been entirely lost sight of, and it has been
assumed that mental suffering generally is not a subject for

This opinion apparently arose from a misconception of
Lord Wensleydale's dictum in the case of Lynch v. Knight, -^
where he said: "Mental pain or anxiety the law cannot value,
and does not pretend to redress, when the unlawful act com-
plained of causes that alone: though where a material damage
occurs, and is connected with it, it is impossible a jury, in esti-
mating it, should altogether overlook the feelings of the party
interested." Taking this language in connection with the
facts of the case, the meaning is clear; but the case was an action
of slander, brought for an imputation on the plaintiff's chastity,
and the decision was that such an imputation was not actionable
without special damages and that mental pain alone is not
such special damage. No question of the measure of damages
was under consideration, and the opinion is no authority for

" Maine: Goddard v. G. T. Ry., 57 Georgia: Courtoy v. Dozier, 20 Ga.

Me. 202. 369.

Maryland: Handy v. Johnson, 5 Md. Illinois: Hawk v. Ridgway, 33 111.

450. 473.

New Hampshire: Beach v. Hancock, New York: Gold v. Bissell, 1 Wend.

27 N. H. 223, 59 Am. Dec. 373. 210, 19 Am. Dec. 480n.

Vermonl: Alexander v. Blodgett, 44 North Carolina: Mead v. Young, 2

Vt. 476. Dev. & Bat. 521.

England: I. de S. v. W. de S., Y. B. Texas: Davidson v. Lee, 139 S. W.

Lib. Ass., fol. 99, pi. 60; s. c. Ames, 904.

Gas. on Torts, 1; Mortin v. Shoppee, 3 England: Wood v. Lane, 6 C. & P.

C. & P. 373. 774; Peters v. Stan way, 6 C. & P. 737;

2' United States: Fotheringham v. Grainger v. Hill, 4 Bing. N. C. 212.

Adams Ex. Co., 36 Fed. 252. -» 9 H. L. C. 577, 598.


the proposition that mental suffering which is the result of
an actionable wrong is not in any case a proper subject for
compensation. Lord Wensleydale's general proposition was
wholly obiter. ^^

§ 43a. Ambiguity of the term " Mental Suffering."

The confusion which still surrounds the question as to liability
for mental suffering is also partly due to the fact that the term
is used to cover a variety of injuries of very different kinds.
Thus, mental suffering may consist of annoyance, distress or
anxiety; among its most serious forms is fright or terror. It
may also spread from the brain to the whole nervous system,
and so become nervous shock or nervous prostration. Nervous
shock and prostration, again, may produce specific bodily
illness and irreparable mental disorder, or even death. There
may be also a long or short interval of time, or no appreciable
interval between the first and the last stage. Under the
head of mental suffering come also injuries to the feelings and
affections — shame, humiliation, and grief. In the decisions,
the various species of suffering produced through the brain
or nervous system are not carefully distinguished from one
another, yet it is obvious that they form a series, of which the
two extremes are very different. All this is matter of fact of
which the courts must take cognizance. The law is not a meta-
physical or philosophical system bound to any a priori theory
of the nature of the mind or its connection with the body. It
takes both as they are found * inseparably linked together, the
brain and nervous system being part of the physical organism.
Injuries to the feelings and mental suffering are of such
frequent occurrence in daily life that it is impossible that an
action for damages should be allowed wherever they are caused
to one person by the wrong or negligence of another. As has
been pointed out with regard to recovery for fright, in a class
of cases of constant occurrence, fright is an incident of every
railroad accident. If negligence producing fright were enough
to state a cause of action, every passenger, though not in any
other way sustaining damage, would have a cause of action

'° 9 H. L. C. 591. See for further consideration of this subject Sedg. El.

Dam. (2d ed.) 100.


against the company for the fright to which he had been sub-
jected.^^ In much the same way in cases involving the family
affections, if an action in all cases is sustained, every relative
of the injured person would have an action, on the ground of
sympathetic suffering, although as a matter of fact in the case of
the nearest relatives there may be no actual suffering at all.
Consequently, it has been repeatedly laid down that the mere
allegation of a wrong or act of negligence on the part of A
through which B, to whom A owes a duty of care, suffers from
fright, does not state a cause of action. So also, as we shall
see presently, in an action for breach of an ordinary contract,
although the breach obviously occasions distress and anxiety,

Online LibraryTheodore SedgwickA treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 1) → online text (page 8 of 88)