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into an unjust or oppressive assessment. It is difficult to see how more precise instructions could have been given. The assessment was not left to the ungoverned and unlimited discretion of the jury. It may be and it probably is the fact that the damages found were excessive and quite unreasonable. There must always be danger of such assessments, if a jury is at liberty to fix a valuation upon something that cannot be valued. But this is irremediable by us. The only palliation that remains in such a case (it is not a cure), is the free exercise of the power which the Court of Common Pleas has to grant new trials.

The judgment is affirmed.

30. BALLOU v. FARNUM

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1865

11 All. 73

TORT against the trustees named in a mortgage executed by the Norfolk County Railroad Company upon their railroad and franchise, seeking to recover for a personal injury sustained by the plaintiff by being run against by a car of the defendants. The declaration alleged that by this act of the defendants he was hurt and put to great expense; and, being before able to earn large sums by his business, was rendered unable to labor in and conduct his business, and deprived of the earnings which he would otherwise have made. No objection was made to the form of the declaration.

At the second trial in this Court, before Gray, J., after the decision reported in 9 Allen, 47, the plaintiff was allowed, in order to show his bodily and mental capacity before the accident, and the extent of his injury, to introduce evidence that before the accident he owned and carried on a large mill for the manufacture of fancy cassimeres; used to select the patterns and colors which required constant attention and thought; bought part of the stock, hired the workmen, and agreed with them for their wages; superintended the putting in of machinery; conducted an extensive correspondence, and twice a year took an account of stock; and that since the accident he had been able to do very little that required mental application or physical labor.

The plaintiff then proposed to ask witnesses of suitable knowledge and experience whether the work at his mill was as well done after the accident as before; whether after the accident the business was conducted at a profit or a loss; what were the value and the usual compensation, at the time of the accident and since, of such services as the plaintiff performed before the accident, and of such as he could perform after it; and what compensation a person of the skill and capacity of the plaintiff would command in the market at the time of the accident and since. But all this testimony was objected to by the defendants, and excluded.

The defendants requested the presiding judge to instruct the jury that the plaintiff, if his business capacity was superior to that of men in general, was not on that account entitled to greater damages. The judge declined so to instruct the jury, and instructed them that if the defendants were liable in this action the plaintiff was entitled to recover, as part of his damages, compensation for his loss of physical and mental capacity, so far proved to have been caused solely by the defendants' negligence; that there was no rule of law that one man was or was not exactly like another; that it was a question of fact for the jury what injury the plaintiff has suffered by the defendants' negligence, not what any other man had suffered; that the evidence of his occupation and capacity was admissible only in order to enable the jury to judge of the injury to his capacity; that this was an action for an injury to the man, and not for interfering with his business, and the damages must be limited to the personal injury to him occasioned by the defendants' negligence.

The jury returned a verdict for the plaintiff, with $9,687.50 damages; and the case was reported for the determination of the whole Court, upon the competency of the above evidence, and the correctness of the above instructions.

F. H. Dewey and E. B. Stoddard, for the defendants. The law makes no distinction between men, and damages sustained by them are not to be measured by the wealth, occupation, or capacity of the person injured. Evidence of the plaintiff's wealth, in owning a large mill, was improperly admitted. .

G. F. Hoar (P. E. Aldrich with him) for the plaintiff.

COLT, J. The plaintiff in this action is entitled to recover as damages compensation for all such personal injury to him as was the necessary and proximáte consequence of the alleged wrongful act of the defendants, and for such other injury as was the direct and natural, though not the necessary consequence thereof, and which is specially alleged in his declaration. It is averred that, being a manufacturer, before the accident able to earn large sums of money, he was by the injury rendered unable to labor in and conduct his business. No objection was taken to the form of the allegation, and it is to be regarded as a sufficient statement that the injury has produced a diminution of capacity, either mental or physical or both. For the purpose of proving the extent of the injury, the plaintiff was permitted to introduce evidence to show his previous occupation as a manufacturer, the nature of the duties he was accustomed to perform, and that since the accident he was able to do very little that required mental application or physical labor; and it is now insisted that this evidence was improperly admitted. It is said that if the jury were permitted to take into consideration as an element of damage the loss of intellectual power and capacity of the plaintiff for business, the inquiry must of necessity include an estimate of the future profits of the business in which the plaintiff was or might thereafter be

engaged; that such an estimate can furnish no safe basis for fixing the compensation, and must at best be conjectural and uncertain.

In general the profits of a future business are indeed too remote and uncertain to be relied on as an element in the estimate of damages. If this evidence had been offered by the plaintiff with a view of increasing the damages on account of his wealth or peculiar skill as a manufacturer, or the large profits he would be able to realize in his future business, and it had been admitted for that purpose, the argument of the defendant would be entitled to further consideration. But it was offered only to show the extent of the personal injury by reason of the loss of mental vigor and endurance thereby occasioned. The diminution, whatever it was, could only be shown by evidence of strength before and weakness afterwards as manifested in the ordinary pursuits of the plaintiff. The presiding judge admitted it only for this restricted purpose, and carefully instructed the jury that it was admissible only in order to enable them to judge of the injury to his capacity, and that the action was for an injury to the man, and not for interfering with his business.

In all actions of this description, and particularly in those in which damages for mental suffering or loss of mental capacity are sought to be recovered, the difficulty of furnishing by evidence the means of measuring the extent of the injury, so that the jury may be able to award with any certainty a pecuniary equivalent therefor, is at once apparent; and in this difficulty the defendants find argument for the support of their objection. But the answer is, that the law does not refuse to take notice of such injury on account of the difficulty of ascertaining its degree. In a variety of actions founded on personal torts, and in many where no positive bodily harm has been inflicted, the plaintiff is permitted to recover for injury to the feelings and affections, for mental anxiety, personal insult, and that wounded sensibility which follows the invasion of a large class of personal rights. The impossibility, in all such cases, of precisely appreciating in money mental suffering of this description is certainly as great as is suggested where the question is what shall be allowed for a permanent injury to mental capacity. The compensation for personal injury occasioned by the negligence or misconduct of others, which the law promises, is indemnity, so far as it may be afforded in money, for the loss and damage which the man has suffered as a man. Some of its elements may be bodily pain, mutilation, loss of time and outlay of money; but of more important consideration oftentimes is the mental suffering and loss of capacity which ensues. Of these several items of injury, if compensation is to be confined to those capable of accurate estimate, it will include but a small part, and must exclude all those injuries commonly regarded as purely physical; for the difficulty in ascertaining a pecuniary equivalent for the last named is precisely the same and quite as great as any that have been suggested. In fact, it will be found impossible to fix a limit to injuries of a physical nature so as to exclude from consideration their effect on the mental organization of

the sufferer. The intimate union of the mental and physical, the mutual dependence of each organization if indeed, for any practical purpose in this regard, they can be considered as distinct - the direct and mysterious sympathy that exists whenever the sound and health condition. of either is disturbed, render useless any attempt to separate them for the purpose indicated. It is obvious, upon a moment's reflection, that the powers and usefulness of the limbs and senses in ministering to the necessities and pleasures of the individual are to a great extent to be measured by the knowledge, experience and taste which he possesses, and which are purely qualities of the mind. Take the case of an injury to the right arm of a skilful painter or musician, for example. To show the extent of his injury, the plaintiff produces evidence of the use he was able to make of the arm before and after the accident. From such evidence alone the jury judge of the plaintiff's loss. Such proof is constantly resorted to without objection in these cases. And still the chief value of the limb to its possessor consists in its skilful use, as controlled and directed by the cultivated taste and education of the plaintiff; and the chief loss to him is the loss of the power to make these purely intellectual endowments available for his pleasure or benefit. Or suppose the injury be to one of the five senses. Can any rule be adopted which shall limit the damages to that portion of the injury suffered which may be called only bodily?

There is a class of injuries, especially those which affect the brain and nervous system, to which this case seems to have belonged, where, by common observation, the most satisfactory symptom and proof of the physical injury is to be found in the weakness and derangement of the intellectual faculties. Upon the whole, then, upon principle we can see no error in the admission of the evidence, with the accompanying instructions..

The cases in New York not only sustain the grounds upon which we place this decision, but some of them go further than the true rule of damages in such cases would seem to require. Lincoln v. Schenectady, &c. Railroad, 24 Wend. 434; Ransom v. New York & Erie Railroad, 15 N. Y. 415; Tilley v. Hudson River Railroad, 24 N. Y. 471.

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1 [For the application here of the principle of certainty of damage by loss of commercial profits, see Title C, Sub-title (II), Topic 1, post, Nos. 149-152.]

31. FRY v. DUBUQUE & SOUTHWESTERN RAILWAY

COMPANY

SUPREME COURT OF IOWA. 1877

45 Ia. 416

APPEAL from Jones District Court. Wednesday, March 21. It is claimed by the plaintiff that the defendant permitted snow and ice to accumulate on the steps and platform at its station house in Monticello, whereby the same became dangerous, and that the plaintiff slipped and fell therefrom, whereby she was greatly injured. There was a jury trial. Verdict and judgment for the plaintiff. Defendant appeals. Clark & Moulton and N. M. Hubbard, for appellant.

J. Q. Wing and E. Keeler, for appellee.

SEEVERS, J. The evidence satisfies us that the injury received by the plaintiff was not of a permanent character, nor was it at all times painful. At the trial the plaintiff testified: "I still have to bathe my limb in cold water sometimes and wrap it up; after walking it gets painful." The limb had been previously injured, and the attending physician testified: "I think her limb was in a fair way to recover permanently after the first injury, and I would not say there is no chance for a permanent recovery now." Such being the evidence as to the character of the injury and the probabilities as to future suffering, the Court gave the jury the following instruction:

"9. If you find from the evidence, as hereinbefore stated, the plaintiff is entitled to recover, then you will take into consideration the nature and character of the wound or injury, the present situation and condition of her limb, the pain she has suffered, or which from the evidence she will suffer, and you will give her such damages as will fairly compensate her for all past, present or future physical suffering or anguish which is, has been or may be caused by said injury."

If the injury is of a permanent character, it is conceded there may be a recovery for future physical suffering, and such was the ruling of this Court in Collins v. Council Bluffs, 32 Iowa, 324. But it is claimed such

is not the rule if the injury is not of that character. We, however, think otherwise, and hold that if the injury is not of a permanent character, but the reasonable certainty is, as shown by the evidence, there will be future pain and suffering there may be a recovery therefor. There was evidence tending to show there might be such suffering, sufficient to authorize the court to submit such question to the jury. We, however, are of the opinion the instruction is too broad. . . . Under the law, the jurors had no right to allow damages for mere possibilities, and such under the instruction they could without doubt have allowed.

Reversed.

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