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tier, 80 Cal. 579.) The complaint does not allege a loss of profits. The allegation is merely that he was rendered unable to labor and was permanently crippled.

2. But the evidence was properly submitted to the consideration of the jury for a different purpose. In Treadwell v. Whittier, supra, the allegation was similar, although not so specific. It was there decided that it was proper to instruct the jury to consider the loss arising from the fact that the injury received rendered the plaintiff less capable of attending to his business than before, and that such loss was not special damage, but was provable and recoverable under general allegations of permanent disability. It is practically conceded in the case at bar that under such allegations it would be proper to prove the business or occupation in which the plaintiff had been previously engaged, and its nature, and that the injury rendered him less capable, or wholly incapable, of continuing such occupation or business. The authorities are in practical unanimity to that extent.

The real point of the objection, therefore, is, that while the jury may consider the work the plaintiff previously did and was able to do, or the business he was able to and did carry on, they may consider it only in a general way, and that when they come to determine what his financial loss has been from the deprivation of his former bodily ability and vigor, they must rely on their common knowledge as to the value of such occupation or business, to a man of his strength and capacity, and that they cannot have the aid which would come from proof of the amounts he had been accustomed to receive therefrom. Evidence of what a plaintiff had usually earned before his injury, either as wages, or in business on his own account, would be the most accurate, satisfactory, and valuable data from which to determine the value of the time and labor he has lost by being rendered unable to continue such occupation or business. For example, if he had previously made five thousand dollars a year by his personal efforts, and afterwards by reason of his injury could make no more than one thousand dollars, his damage from the deprivation of bodily strength would be much greater than if he had previously been able to make only two thousand dollars a year. The rule contended for would drive the jury from the actual facts of the case to their own surmises and experience as a criterion for decision as to the value of his time and labor. The authorities sanction the more accurate method. In C. R. L. & P. Co. v. Posten, 59 Kan. 453, the Court says:

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"In order that the jury may intelligently estimate the loss the plaintiff has sustained, it is necessary that they should be informed with reference to his business affairs, and while they may not, as compensation for the loss of his time, include speculative profits, or profits on invested capital, it is for them to say what loss has resulted to his business because of his being incapacitated from attending to it, and to award him as damages the value of his time and labor to himself in the transaction of his own business. This is the same com

pensation, and for precisely the same reasons, that a clerk or agent doing the same work for wages might recover for his loss."

In Sedgwick on Damages, volume 1, section 180, the rule is thus stated:

"The most trustworthy basis of damages, in such a case, is the amount which the injured party has earned in the past. This is, however, only evidence from which the jury will be enabled to say what the services of such a man as the plaintiff are worth, and the jury should distinctly understand that it is not to be taken as the necessary and legal measure of damages."

It is the loss occasioned by the particular man who was injured that is to be ascertained, if possible, and not the loss which an average man would sustain from a similar injury. The standard of an average man is resorted to only where the specific evidence as to the actual loss to the particular man is wanting and where experience teaches that there will be some loss from the injury. The following authorities are of similar effect to those above quoted: Smith v. C. & A. Ry. Co., 119 Mo. 253; Schmitz v. St. L., etc. Co., 119 Mo. 277; Bartley v. Trorlicht, 49 Mo. 219; Frobisher v. Fifth Ave. T. Co., 30 N. Y. Supp. 1102; Hamilton v. Great Falls, etc. Co., 17 Mont. 352; Luck v. Ripon, 52 Wis. 200; Bloomington v. Chamberlain, 104 Ill. 268; Chicago, etc. Co. v. Meech, 163 Ill. 314; Chicago, etc. Co. v. Anderson, 182 Ill. 298; Wade v. Lercy, 20 How. 34; Chatsworth v. Rowe, 166 Ill. 116; North Chicago, etc. Co. v. Brown, 178 Ill. 191; Bailey v. Centerville, 108 Iowa, 20; Falangan v. Baltimore & O. R. Co., 83 Iowa, 643; Goodheart v. Penna. R. Co., 177 Pa. St. 1; Birkel v. Chandler, 26 Wash. 241; Ehrgott v. New York, 96 N. Y. 276; Cent. P. v. Senn, 73 Ga. 709. It is true that there are many decisions to the contrary, and some of the text writers say that the contrary decisions are in the majority. But, for the most part, they are based upon the doctrine that under a general allegation of permanent disability to work, evidence cannot be admitted to prove that his disability renders his devotion to his business less profitable to him after the injury than it was before. Inthis State the rule is, as established in Treadwell v. Whittier, supra, that the jury may, under such general allegations, consider the permanent loss from the fact that the injury renders the plaintiff less capable than before of doing the business in which he was previously engaged. If they can consider a loss of this character from partial disability, they can, of course, consider the loss from a disability which renders him wholly unable to carry on his former business and compels him to engage in a business less remunerative. And it would be absurd to say that the jury could consider such loss, and at the time refuse them the aid of any information as to the relative gains from the business formerly carried on and that subsequently conducted, the only facts that would show the actual value, to him, of his time and labor. If the latter were equally or more profitable, no doubt the defendant

would claim, and would be conceded, the right to show that fact in mitigation of the damages. In the States where such proof cannot be made unless the loss of business is specially pleaded, the rule is uniform that evidence of the wages received or gains from business, before and after the injury, is admissible. In this State, where such loss of business power may be considered without having been specially pleaded, it is obvious that the same rule should be applied and evidence of the wages or gains before and after the injury admitted. The case of Lombardi v. California St. Ry., 124 Cal. 311, is not in conflict with these views. There the plaintiff had specially alleged the amount of the loss by reason of his inability to attend to his business as he formerly did, and that it consisted of a specified sum paid as wages to men working in his place. He offered evidence of special damages from loss of profits in the business which was carried on by himself and a partner in which considerable capital was invested, concerning which there were no allegations. It was held that this evidence was improperly admitted. The Court says that the rule stated in Treadwell v. Whittier was not involved. In the case at bar the plaintiff had no capital invested, nor any partner.

It is necessary, in all such cases, as stated by Mr. Sedgwick, supra, to direct the jury that no allowance as damages can be made for the specific loss of profits that may be disclosed by the evidence of the comparative gains before and after. This the Court did in the present case. The jury was instructed that, in fixing the amount of damages, they could take into consideration the inability of the plaintiff to perform labor, caused by the injuries received from the defendant's negligence, but that they could not "award the plaintiff in this case any damages to compensate him for the loss of his business, trade, or calling." The evidence is received solely for the purpose of enabling the jury to more intelligently estimate the loss occasioned by his incapacity, and not as a basis for the allowance of the particular losses indicated. It is the usual and ordinary previous gains in his usual and ordinary business that is to be considered, and not exceptional of extraordinary profits from particular transactions. The instructions given as above put the matter to the jury in the proper light, and we must presume that it prevented them from allowing a loss of profits as damages, and that they considered the evidence objected to only to determine the plaintiff's damage from loss of earning power.

The judgment and order are affirmed.

We concur:

ANGELLOTTI, J.
SLOSS, J.

Topic 2. Destruction of the Relation by Defamation of the Plaintiff SUB-TOPIC A. EXISTENCE OF THE RELATION, AND ITS Loss, NOT PRESUMED. DAMAGE CERTAIN AND SPECIFIC (SPECIAL DAMAGE) 136. W. S. An Exact Collection of Choice Declarations, etc., translated into English for the benefit and help of young Clerkes (1653. Part 2, p. 74). Declaration for words saying the plaintiff to be a felon [with allegation of special damage]. E. H. complaineth of W. T. in the Custody of the Marshall, etc. for that namely, hat whereas the said E. remained a good, true, faithful, and Liege Subject of the now Queen, and as a good, true, faithfull, and Liege Subject of the said now Queen, and of divers of her Progenitors, late Kings of England, from the time of his Nativity hitherto, behaved, had and governed himself, and of a good name, fame, condition, conversation, and gesture among all his Neighbours, and other faithfull Subjects of the Lady, the now Queen, with whom the said E. hitherto had fellowship, was noted, and reputed, and as a faithfull subject of the said Lady, the Queen, without any Crime of Theft, Felony, Falsity and Deceipt, from the whole time aforesaid hath remained, and continued unhurtfull, untoucht, and unspotted; Notwithstanding which, the said W. not being ignorant of the Premisses, thinking to deprive the said G. of his good name, fame, and credit aforesaid, And so to bring him the said E. into a bad name, fame, and opinion of the Liege people of the said Lady, the Queen, as they the said Liege people of the said Queen, from the Company of him the said E. should withdraw themselves, and with him in any manner they distrusted to deal, or to have Comerce, And in forfeiture of all and singular his Goods and Chattells, Lands, and Tenements, and also to cause to be brought, and put into the danger of the loss of his life [in such a day and year, at, etc.] in the presence and hearing of divers Worshipfull, and other faithfull Subjects of the said Lady, the now Queen, then and there being and hearing, these scandalous and opprobrious English words following, the said W. did speak, utter, affirm, pronounce and publish, that is to say [etc.], by pretence of which said false and scandalous words, speech, and utterance, the said E. not only in his good name, fame, and credit aforesaid, which before towards his Neighbours, and divers Worshipfull, and other faithfull Subjects of the said Lady, the now Queen, he had used, is hurt; And also it is true, they his said Neighbours, and many more faithfull Subjects of the said Lady, the Queen, with the said E. in any manner refused to intermeddle by the said occasion, and from the com pany of the said E. they withdrew themselves, by which the said E. divers great gains, proffits, and advantages, which he in buying, selling, and lawfull bargaining with such his Neighbours, and other faithfull subjects of the said Lady, now Queen, to the Relief of him the said E. and his Family, might have gained, hath altogether lost, and to let pass to the Damage, etc.1

[For the application, to this class of cases, of the principle of Remoteness of Consequences, see Book II, Title C, Sub-title (II).

For the principles which may Excuse persuasion to a breach of contract or other harm of the present sort, see Book III, Title C, Sub-title (III).

CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: Herbert Spencer, "Justice," c. XIII, The Right of Incorporeal Property, § 62. Henry Sidgwick, "Elements of Politics," c. IV, § 2, par. II.

Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. XI, § 342, p. 337.

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Thomas E. Holland,“ Elements of Jurisprudence," 9th ed., c. XI, par. III, p. 172. Theodore D. Woolsey, "Political Science," § 50.]

137. SELL v. FACY

KING'S BENCH. 1615

2 Bulst. 276

In an action upon the case for scandalous words, upon non culp. pleaded, a verdict was found for the plaintiff: It was moved for the defendant in arrest of judgment, that the declaration here is not good, in regard that he lays, for the ground of his action, a loss of his marriage by reason of the speaking of the words; he lays the same in this manner, "quod intendebat & conatus fuit" to have such a woman in marriage, and that by reason of the words spoken of him, "recusavit," she did refuse to have him. "Intendebat"; this is but onely to shew what his intention was; he lays no communication of marriage, and therefore the declaration is not good, for that he ought to have laid, “quod colloquium habitum fuit de matrimonio"; but it is not so, and therefore not good. . . .

DODDERIDGE, Justice. In an action of trespass, for beating of J. S. per quod servicium suum amisit, this is not good, if he do not lay it expressly that he was his servant. In this principal case, the Court was clear of opinion, that the declaration was not good, but advised the plaintiff to amend his declaration, and to lay, "quod colloquium habitum fuit de matrimonio." If the declaration here had been good, that there was a speech of marriage laid, then this hath been here adjudged, that these words are scandalous, per quod he lost his marriage; this hath been here adjudged good, for a man plaintiff, as well as for a woman; the words were, that he had a bastard, or words to the same effect, per quod he lost his marriage.

CROKE, J. "Conabatur," it is individuum vagum, he ought to have said, "quod colloquium habitum fuit de matrimonio." "Conatus fuit" to sell his manor, is not good, in an action upon the case brought for slandering of his title, but he ought certainly to lay, that he was in speech of sale of the same and hindered by the words.

DODDERIDGE, J. The plaintiffe hath failed here in setting forth his wrong and dammage; for that intention is but the act of the mind, and this is to be taken divers ways.

COKE, Chief Justice. "Conatus," quid fit, non definitur in lege. The Court was all clear of opinion against the plaintiffe, that the declaration here was not good; and therefore they advised him, to begin his sute again, and to lay in his declaration an express colloquium de matrimonio; and a breach, or falling off, by reason of these words; but this declaration, as it is, is too short, and not good, and so judgment ought to be given against the plaintiffe, and accordingly the rule of the Court was, quod querens nil capiat per billam.

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