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has been held that ordinary negligence on the part of the victim will not bar a recovery.117

The Functions of Court and Jury.

To the court belongs

the power of announcing and explaining the rule of law relating to damages in a particular case, while to the jury belongs the power of determining the facts. If the evidence is undisputed and warrants but one inference, the court may properly direct the jury to find a verdict in accordance with that inference. Accordingly, when a plaintiff, injured by the defendant's negligence, asks damages for loss of time, while confined to his house, but offers no evidence showing the character or extent of such damages, the court should direct the jury to bring in a verdict for nominal damages only.118 When the evidence is undisputed, it is also a question for the court whether the plaintiff is entitled to exemplary damages or to compensatory damages. 119 And, generally, it is the duty of the court to state the rule which the jury are to apply in fixing the damages in the case before them.120

Amount of Damages is Ordinarily for the Jury. While the amount of damages in a particular case is generally left to the discretion of a jury, their power, even here, is not arbitrary. It is subject to considerable supervision by the court. For a time after the institution of trial by jury was established, the answer of a jury to the question of damages appears to have been final,121 especially in cases of trespass to property, where the facts were within the personal knowledge of the jurors; 122 or of defamation, where the injury sustained depended much upon the quality of the persons and the

117 Chicago, etc., Co. v. Meech, 163 Ill. 305, 45 N. E. 290 (1896); Galveston, etc., Ry. v. Zantzinger, 92 Tex. 365, 48 S. W. 563, 44 L. R. A. 553, 71 Am. S. R. 859 (1898).

118 Leeds v. Met. Gas Light Co., 90 N. Y. 26 (1882).

119 Louisville, etc., Ry. v. Fox, 11 Bush. (74 Ky.) 495, 516 (1876); Spokane Truck Co. v. Hoefer, 2 Wash. 45; 25 Pac. 1072 (1891); Ward v. Blackwood, 41 Ark. 295 (1883); Goldsmith's Adm'r. v. Joy, 61 Vt. 488; 17 At. 1010 (1889).

120 Balt. & Ohio Ry. v. Carr, 71 Md. 135, 17 At. 1052 (1889); Knight v. Egerton, 7 Exch. 407 (1852).

121 Sedgwick, Elements of Damages p. 2. Sedwick On Damages, (8th Ed.) § 1316.

122 Delves v. Wyer, 1 Brownl. 204 (1605); the jury assessed the damages at £40 for cropping 200 pear trees and 100 apple trees, and the court said it could not diminish the "damages in trespass which was local and therefore could not appear to them."

local situation.123

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But it is to be borne in mind that courts existed before juries," and have never "allotted all questions of fact to the jury." 124 Accordingly, when the matter of damages depends on a "cause which appears in sight of the court, so that they may judge of it as in mayhem, etc.; "125 or upon undisputed evidence, which shows that if the plaintiff is entitled to recover anything he is entitled to recover a specific sum, or a sum much larger than the jury have awarded, the court has the right to set aside the verdict.126

At present, therefore, the jury have not unlimited authority over the assessment of damages. As early as 1695, Lord Holt, in setting aside a verdict for £2,000 damages for false imprisonment, said: "The jury were very shy of giving a reason of their verdict, thinking they have an absolute, despotic power; but I did rectify that mistake, for the jury are to try causes with the assistance of the judges, and ought to give reasons when required, that if they go upon any mistake they may be set right." 127 Accordingly, if the verdict is the result of casting lots, or of any other improper practice; 128 or if the jury have refused to apply the measure of damages properly stated to them by the court,129 or if their verdict shows that they adopted an erroneous theory of liability,130 or that their

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123 Hawkins v. Sciet, Palmer, 314 (1622). In this case the court at first reduced the damages from £150 to £50, but afterwards on great consideration revoked this and resolved to leave such matters to the jury." Lord Townsend v. Hughes, 2 Mod. 150 (1677). Verdict for £4,000 was left undisturbed.

124 Thayer, "Law and Fact in Jury Trials," 4 Harv. L. Rev. 147; Cases on Evidence Ch. I, Sec. VI. 125 Hawkins v. Sciet, Palmer 314 (1622).

128 Richards v. Sanford, 2 E. D. Smith (N. Y.) 349 (1854); verdict for $10.00 was set aside and new trial ordered, unless defendant would consent to its being raised to $100.00; Phillips v. Lon., etc., Ry., 5 C. P. D. 78 (1874); verdict for £7,000 was set aside as inadequate, the

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evidence showing that the plaintiff
as a physician had been earning
from £6,000 to £7,000 a year and was
incapacitated for life. On a second
trial, the verdict was for £16,000,
and the court refused to disturb it,
as being excessive: Carter v. Wells,
Fargo & Co., 64 Fed. 1005 (1894).
127 Ash v. Lady Ash, Com. 357;
plaintiff was confined two or three
hours and forced to take physic.
128 Mellish v.
Burnb. 51
(1719); verdict set aside because
"jury threw up cross or pile for
£300 or £500." Falvey v. Stanford
L. R. 10 Q. B. 54, 44 L. J. Q. B. 7
(1874).

129 Limburg v. Germ. Fire. Ins. Co., 90 Ia. 709; 57 N. W. 626 (1894).

130 Louisville, etc., Ry. v. Minogue, 90 Ky. 369, 14 S. W. 357 (1890`; Moseley v. Jamieson, 68 Miss. 336

minds were influenced by some improper motives or feelings or bias,131 the court has the power and will not hesitate to set the verdict aside, unless the prevailing party assents to its reasonable modification.

Damages not to be Split Up. The victim of a tort is not allowed to bring a separate suit for each item of damage which results from a single wrongdoing. “It is ofr the public good that there be an end of litigation," is an ancient and honored maxim of the common law. 132 Accordingly, in a suit for personal injuries, the plaintiff not only may claim prospective damages, in addition to those already developed, but must claim them then, if he would recover them at all. 133 So, if the action is brought for injury to property, the plaintiff must unite all the items of damage both present and prospective.154

Thus far, there is no difference of opinion and no difficulty. But suppose a single tortious act of the defendant invades distinct legal rights of the plaintiff,—does the common-law maxim apply? Is the plaintiff bound to bring á single action for all the damages suffered? The answers are discordant. In England, and in some of our jurisdictions, the courts declare that the single act may result in more than one tort. If it causes harm to the plaintiff's person and also to his property, he has two causes of action, although the several injuries are inflicted at the same moment. His right to personal security, it is said, is wholly distinct from his right of property,'

(1890)). Church v. Ottawa, 25 Ont. R. 298 (1894).

131 Thurston v. Martin, 5 Mason (U. S.), 497 (1830).

132 Wichita, etc., Ry. v. Beebe, 39 Ks. 465, 18 Pac. 502 (1888).

Fetter v. Veal, 1 Salk. 11, 12 Mod. 542 1 Ld. Raymond, 339; (1703); recovery had been had for assault and battery. Upon reopening of wound, second action was brought but held not to lie; Hodsoll v. Stallebrass, 11 Ad. & E. 301, 3 P. & D. 200, 9 C. & P. 63 (1839); Fox V. St. John, 23 New Bruns. 244 (1883); Stodghill v. Chic., etc., Ry., 53 Ia. 341; 5 N. W. 495 (1880);

135

Howell V. Goodrich, 69 Ill. 556 (1873); Richmond Gas. Co. V. Baker, 146 Ind. 600; 45 N. E. 1049, 36 L. R. A. 683 (1897); Kansas, etc., Ry. v. Mihlman, 17 Ks. 224 (1876); Thompson v. Ellsworth, 39 Mich. 719 (1878); Warner v. Bacon, 8 Gray, (74 Mass.) 397 (1857); Filer v. N. Y. C. Ry., 49 N. Y. 42 (1872); Goodhart v. Penn. Ry. 177 Pa. 1; 35 At. 191 (1896); Whitney v. Clarendon, 18 Vt. 252 (1846).

134 Wheeler Savings Bank v. Tracy, 141 Mo. 252, 42 S. W. 446; 64 Am. S. R. 505 (1897), and cases cited in preceding note.

1 Brunsden v. Humphrey, 14 Q.

and the essential difference between an injury to the person and an injury to property makes it impracticable, or at least very inconvenient in the administration of justice, to blend the two.'

This view seems to the writer correct. It must be admitted, however, that the weight of judicial decision and dicta in this country is opposed to it. According to these authorities," the cause of action consists of the wrongful act which produced the effect, rather than in the effect of the act in its application to different primary rights; and the injury to the person and property, as a result of the original cause, gives rise to different items of damage." 137

§ 4. LOCAL ACTIONS FOR TORT.

Early Law Modern Doctrine.

Originally, all actions at common law were local, because the issue of fact in every commonlaw action was to be tried by a jury of the vicinage. This rule was modified by degrees, until the modern doctrine was established, "that actions are deemed transitory when the transactions on which they are founded might have taken place anywhere; but are local when their cause is in its nature necessarily local." 138 The most common example of a local action for tort is that of trespass to land. As this tort can occur only in the country where the land is situated,

B. D. 141, 53 L. J. Q. B. 476, 51 L.
T. R. 529, 31 A. L. J. 329 (1884);
Watson v. Tex., etc., Ry., 8 Tex.
C. App. 144, 27 S. W. 924 (1894).

136 Reilly v. Sicilian Asphalt Co., 170 N. Y. 40, 62 N. E. 772, 88 Am. S. R. 636, 57 L. R. A. 176 (1902). In this case, stress was laid upon the fact that different periods of limitation apply to the two injuries; that the right of action for injury to property is assignable, and that for injury to person is not; that the former is seizable by creditors and would pass to an assignee in bankruptcy, while the latter is not seizable and would not pass. This decision overruled S. C. in 31 App. Div. 302, 52 N. Y. Supp. 817 1898).

137 King v. Chic., etc., Ry., 80 Minn. 83, 82 N. W. 1113, 81 Am. S. R. 238, 50 L. R. A. 161, with note (1900); Segar v. Bookbamsted, 22 Conn. 295 (1853). Cf. Boerum v. Taylor, 19 Conn. 122 (1848), holding that plaintiff had two distinct causes of action against defendant for putting poison in rum; one for spoiling the rum, and another for injury to the plaintiff from drinking the rum; Doran v. Cohen, 147 Mass. 342, 17 N. E. 647 (1888); Hatchell v Kimbrough, 4 Jones L. (N. C.) 163 (1856); Cox v. Crumley. Lea (Tenn.), 529 (1880); Hazzard Powder Co. v. Volger, 3 Wyo. 189, 18 Pac. 636 (1888).

138 Livingston v. Jefferson, 1 Brock. (U. S. C. C.) 203, 209 (1811).

the action must be brought there. The court of no other country has jurisdiction of the cause of action. Although it is admitted that this doctrine is highly technical, and, at times, works a hardship to the injured party, it is still maintained in England and in most of our States.1

139

Applying this doctrine, it has been held that an action for cutting and tapping trees is local, but one for slander of title to the land on which the trees stood is transitory.140 An action for the conversion of timber which has been cut, or of oysters which have been taken "from their beds," is transitory.141 It has been held that an action for damages caused by a nuisance may be brought in the jurisdiction where it is situated, although the damages are inflicted in a different jurisdiction.142 If, however, the action is for injury to the land, the suit is to be brought there, although the act causing the injury, such as the diversion of a stream, takes place in another state.1

143

5. CONFLICT OF LAWS IN TRANSITORY ACTIONS.

For torts of a personal

In

What Actions are Transitory. character, the victim is not limited to a local action. His right to a remedy is transitory, accompanying him into other "venues" of the same country, and oftentimes into foreign jurisdictions.144 case he seeks redress in another country from that in which the injury was inflicted, various questions in the conflict of laws may arise. We shall not be able to discuss these questions with fullness in this connection, but must be content with stating the leading

139 Doulson v. Matthews, 4 D. & E. 503 (1792); British South Africa Co. v. Companhia de Mocambique (1893), A. C. 602, 63 L. J. Q. B. 70, 69 L. T. 604; Allen v. Conn. Ry. Co., 150 Mass. 560, 23 N. E. 581, 6 L. R. A. 416 (1890); Watts v. Kinney, 23 Wend. (N. Y.) 485, 6 Hill, 82 (1840); Cragin v. Lovell, 88 N. Y. 258 (1882); Ellenwood v. Marietta Co., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913 (1895); Niles V. Howe, 57 Vt. 388 (1885).

140 Dodge v. Colby, 108 N. Y. 445, 15 N. E. 703 (1888).

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